Litigation Privilege in UK Internal Investigations Revived?
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- In Bilta (UK) Ltd v Royal Bank of Scotland plc, the English High Court has held that internal investigation materials, including interview transcripts, can be protected by litigation privilege when disclosure of them is sought in separate proceedings. The judge found that the investigation materials were prepared by the bank for the dominant purpose of tax litigation with HM Revenue and Customs.
- Matters of privilege turn on the specific facts of each case and the precise nature of the government investigation in issue. The Court stated that it would be incorrect to draw a general legal principle from the judge’s approach to the facts in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation (“ENRC”), where the Court held that interview notes prepared during a bribery investigation were not protected by litigation privilege.
- While the Bilta decision reasserts the general principle of litigation privilege in the context of internal investigations, it does not grapple with the difficult issues at the core of the ENRC decision.