The Sea Change Across the Pond: UK Privilege in Internal Investigations Remains in Flux
As UK courts reshape the landscape of privilege law in the internal investigations context, a recent decision offers guidance but not clarity.
March 30, 2018 at 03:50 PM
8 minute read
Following a series of English High Court decisions that upended standard practice for lawyers conducting internal investigations in the UK, a recent ruling suggests the British assault on privilege may be reaching its end, but the bounds of protection remain unclear.
Starting with 2016's In re RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) (RBS) and continuing through last year's Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (ENRC), the English High Court dramatically limited privilege protections in the context of internal investigations. Taken together, the decisions held that English legal advice and litigation privileges frequently do not protect attorney notes and interview memoranda generated in UK-based internal investigations, allowing disclosure of such materials to both private litigants and UK prosecutors.
Where RBS and ENRC raised alarm among practitioners, the recently decided Bilta (UK) Ltd v. Royal Bank of Scotland [2017] EWCH 3535 (Ch) (Bilta) offers hope. The decision sets limits on the principles articulated in ENRC and gives crucial guidance for attorneys seeking to protect their investigative materials. It does not, however, overrule its predecessors, and significant uncertainty about the scope of privilege in the investigations context remains.
Litigation Privilege
The British recognize two forms of legal professional privilege. Legal advice privilege protects written or oral communications between attorney and client generated for the purpose of providing or seeking legal advice. Litigation privilege provides broader protections, encompassing communications between attorney and client as well as third parties, but only when (1) the litigation is “in progress or in contemplation”; (2) the communications are made “for the sole or dominant purpose of conducting that litigation”; and (3) the litigation is “adversarial, not investigative or inquisitorial.” ThreeRivers District Council v. Governor & Company of the Bank of England (No 6) [2005] 1 AC 610.
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
Trending Stories
- 1The Law Firm Disrupted: For Big Law Names, Shorter is Sweeter
- 2Wine, Dine and Grind (Through the Weekend): Summer Associates Thirst For Experience in 'Real Matters'
- 3'That's Disappointing': Only 11% of MDL Appointments Went to Attorneys of Color in 2023
- 4What We Know About the Kentucky Judge Killed in His Chambers
- 5'I'm Staying Everything': Texas Bankruptcy Judge Halts Talc Trials Against J&J
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250