English High Court Rejects Claim of Litigation Privilege Over Internal Investigation Materials

18 May 2017
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Key takeaways

  • In a very significant judgment, the English High Court has ruled that companies self-reporting to the Serious Fraud Office or anticipating an SFO investigation will not necessarily be able to claim litigation privilege over documents created by their lawyers or third parties.
  • To support a claim for litigation privilege, companies will need to prove that they reasonably contemplated criminal prosecution at the time the documents were created and that the documents were created for the dominant purpose of defending a future criminal prosecution, not merely as part of a fact-finding exercise.
  • Legal advice privilege continues to apply to a relatively narrow category of communications between a specifically-nominated client team and its lawyers.