Litigation privilege: a departure from ENRC?

Charles Thomson (+ 44 20 7919 1879, charles.thomson@bakermckenzie.com) is a partner and Andrew Matheson (+ 44 20 7919 1079, andrew.matheson@bakermckenzie.com) an associate at Baker McKenzie in London.

In Bilta (UK) Ltd v Royal Bank of Scotland plc & Anor [1], the Chancellor of the High Court confirmed that, given the right set of facts, it remains open to parties to claim litigation privilege over documents created during an internal investigation conducted against the backdrop of a criminal investigation. This represented a different approach to that taken in SFO v ENRC [2], a decision that casts doubt on the extent of protection available under litigation privilege in those circumstances. Charles Thomson and Andrew Matheson of Baker McKenzie analyse the judgment.