Another recent High Court decision has considered the question of privilege in a regulatory context: A v B & Anor [2020] EWHC 1491 (Ch). As with other recent decisions of this kind, the issue arose in the context of an auditor required to produce documents to its regulator, the Financial Reporting Council (“FRC”). The decision … Read more
The High Court has held that a bank waived privilege in all contemporaneous communications with its lawyers relating to particular transactions that were alleged to be a sham, as the bank had deployed the lawyers’ advice that the transactions were lawful in order to support its case on the merits. That was regardless of whether … Read more
Burford Capital, one of the largest litigation funders, has been in the press regularly since the publication of a series of tweets and opinion pieces by Muddy Waters (the US investment firm) which also short-sold Burford shares. These events triggered a period of weakness in Burford’s share price. Burford contended that its share price fell … Read more
The High Court has refused to set aside or vary an order for standard disclosure where a defendant bank maintained that production of documents would contravene foreign criminal law or regulations, with the result that the bank’s defence was struck out and it was debarred from defending the claims: Byers & Ors v Samba Financial … Read more
A judgment handed down yesterday by the Court of Appeal considering the question of privilege in a regulatory context represents good news for financial institutions: Sports Direct International plc v The Financial Reporting Council [2020] EWCA Civ 177. The Court of Appeal considered the situation where a regulated person was being investigated by its regulator … Read more
The US Court of Appeals for the Second Circuit has handed down a decision that potentially increases the scope for parties in non-US legal proceedings to use the US courts to access evidence held by US-connected entities, even if that evidence is not located in the US: In re: Application of Antonio del Valle Ruiz, No. … Read more
In a recent decision, the High Court has ordered that documents provided to Tesco plc (“Tesco“) by the SFO for the purpose of negotiating a deferred prosecution agreement (“DPA“) must be disclosed by Tesco in the separate civil action relating to the same subject matter, brought by its shareholders under s.90A of the Financial Services … Read more
In a recent decision in the context of a judicial review, the High Court held that the SFO was able to compel a foreign company to produce documents located outside the jurisdiction, pursuant to s.2(3) of the Criminal Justice Act 1987 (CJA), where there was “a sufficient connection between the company and the jurisdiction”: R (On … Read more
The Court of Appeal has today handed down its eagerly awaited decision in the ENRC appeal: The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006. At first instance, the High Court took a restrictive approach to both litigation privilege and legal advice privilege (see our summary of the decision here). … Read more
