Director of The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (Law Society, Intervener)

Court of Appeal (Civil Division), [2018] EWCA Civ 2006, Sir Brian Leveson, President of the Queen's Bench Division, Sir Geoffrey Vos, Chancellor of the High Court and Lord Justice McCombe, 3, 4, 5 July; 5 September 2018

Privilege - Legal professional privilege - Litigation privilege - Legal advice privilege - Privileged documents - Dominant purpose - Internal investigations - Criminal proceedings - Whether criminal proceedings were reasonably in contemplation - Whether documents were made for the sole or dominant purpose of conducting litigation - Whether documents were protected by legal advice privilege

The appellant, ENRC, is a UK company, part of a multinational group of companies operating in the mining and natural resources sector. In December 2010, ENRC received an email from an apparent whistleblower alleging corruption and financial wrong doing. ENRC engaged lawyers to carry out an internal investigation into the allegations and a firm of forensic accountants to undertake a books and records review. On 10 August 2011, the Serious Fraud Office ("SFO" ) wrote to ENRC referring to recent intelligence and media reports concerning allegations of corruption by ENRC and urging ENRC to consider carefully the SFO's self-reporting guidelines. There followed a lengthy period of engagement between ENRC and the SFO during which ENRC explored entering into a self-reporting process. The SFO terminated that dialogue in around March 2013 and in late April 2013 opened a criminal investigation into ENRC, its subsidiaries, officers and employees in relation to allegations of fraud, bribery and corruption. As part of its investigation, the SFO issued a series of notices pursuant to section 2(3) of the Criminal Justice Act 1987 to ENRC and its lawyers seeking to compel the production of certain documents. ENRC refused to produce some of these documents ("the Documents" ) on the ground that the Documents had been generated by its lawyers and forensic accountants during the course of its internal investigations and were the subject of legal advice and/or litigation privilege. The SFO applied to the High Court for a declaration that the documents were not subject to legal professional privilege.