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  4. LSEW welcomes Court of Appeal privilege ruling

LSEW welcomes Court of Appeal privilege ruling

5th September 2018 | professional regulation

The Law Society of England & Wales has welcomed a ruling from the Court of Appeal in London today that protects the scope of legal professional privilege.

The Society intervened in the case – Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (SFO v ENRC) – after the High Court ordered ENRC to disclose to the SFO documents prepared by the company’s lawyers which the company said were covered by legal professional privilege, which protects confidential communication between clients and their legal advisers.

Mrs Justice Andrews ruled that documents including working papers and notes made by lawyers could not enjoy privilege because they had been created before criminal legal proceedings were contemplated. The company, which denies wrongdoing, claims it was investigating unsubstantiated allegations against businesses it was seeking to acquire. The judge allowed legal advice privilege only for presentations to the company's board, but the Appeal Court (Chancellor Sir Geoffrey Vos and Lord Justice McCombe) ruled that privilege extended to three categories of documents, including interview notes, and material associated with a review by forensic accountants. Advice whose dominant purpose was to avoid legal proceedings, or which was given with a view to settlement, was protected to the same extent as advice given for the purpose of defending such proceedings, the court stated.

Society President Christina Blacklaws explained: "Our involvement wasn’t about the underlying case, but about the principles at stake.

"If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.

"The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure. That privilege belongs to the client, not the lawyer. We’re delighted the Court of Appeal agreed with our arguments around the practical implications of the High Court judgment."

Ms Blacklaws added: "Perversely, a lack of privilege in these cases could have made it more difficult to uncover wrongdoing, as organisations might have been less willing to investigate issues to their full extent without the protection offered by legal professional privilege.

"The original ruling also appeared to exclude from the scope of that protection client discussions with lawyers aimed at reaching a settlement. We argued, and the Court of Appeal also accepted, that was wrong." 

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