Litigation privilege in the context of DPAs – ENRC via the High Court to the Court of Appeal

Alexandra Hulme (+44 (0) 207 861 4978, alexandra.hulme@fieldfisher.com) is an associate and Tony Lewis (+44 207 861 4940, tony.lewis@fieldfisher.com) a partner at Fieldfisher in London.

September saw the long awaited release of the Court of Appeal’s judgment in the case of Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 ("ENRC"). [1] There was obvious relief at its wholesale rejection of the High Court’s judgment especially in relation to the ruling that litigation privilege can attach to internal investigation reports and their underlying documents. However, the judgment of Andrews J, in the High Court, had done more than call just this one aspect into question, write Alexandra Hulme and Tony Lewis of Fieldfisher. She had attempted to reduce the scope of documents and communications to which litigation privilege can apply in a number of ways that was likely to have serious repercussions for the incentives offered by the deferred prosecution agreement (DPA) regime to companies had the Court of Appeal agreed with her ruling.