Tag Archives: Litigation privilege

Article published – ENRC privilege decision: welcome news but difficulties remain

The Court of Appeal’s recent decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006 (ENRC) has, helpfully, departed from the High Court’s overly strict approach to questions of litigation privilege. However, it has left … Continue reading

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Court of Appeal decision in ENRC: orthodoxy restored on litigation privilege, but narrow interpretation of “client” remains for now

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 … Continue reading

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Two recent decisions consider application of principle of limited waiver of privilege

In two recent decisions, the High Court has considered the extent to which a party can provide privileged documents to a third party for a particular purpose without resulting in a wider waiver of privilege. The decisions illustrate the importance, … Continue reading

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Commercial Court finds non-party not entitled to assert litigation privilege

The Commercial Court has held that a non-party who controlled litigation was not entitled to assert litigation privilege against the party it was controlling and who was the party to the proceedings: Minera Las Bambas SA v Glencore Queensland Ltd … Continue reading

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High Court decision supports orthodox view of litigation privilege

The High Court has found that documents prepared by the defendant in the course of an investigation into allegations by HMRC were protected by litigation privilege: Bilta (UK) Ltd (in liquidation) & ors v Royal Bank of Scotland Plc & anor [2017] … Continue reading

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High Court decision takes restrictive approach to both litigation privilege and legal advice privilege

A High Court decision earlier this week has applied a strict approach to litigation privilege in the context of criminal proceedings, finding that litigation was not in reasonable contemplation (so the first limb of the test for litigation privilege was not … Continue reading

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Article published on common interest privilege

Common interest privilege allows communications or documents that are already privileged to be shared with others who have a common interest in their subject matter without losing privilege. The practical significance of this concept is greatly reduced as a result … Continue reading

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No litigation privilege where witnesses were deceived as to true purpose of meetings

The High Court has rejected a claimant's claim to assert litigation privilege over secret recordings of meetings with potential witnesses (who were former employees of the defendant), because the witnesses were deceived into believing that the meetings were to discuss business opportunities rather than evidence … Continue reading

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Article published on maximising privilege protection for internal investigations under US and English law

When a company conducts an internal investigation in respect of a potential regulatory issue, it will wish to maximise the extent to which materials produced in connection with the investigation are protected by privilege. If privilege is protected from the outset, the company … Continue reading

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High Court applies fraud/iniquity exception to displace litigation privilege

The High Court has held that certain communications between a client and lawyers during the course of proceedings were not protected by litigation privilege. The fraud/iniquity exception applied as there was a strong prima facie case that advice was being … Continue reading

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