It Has Been A Privilege...And Still Is In England, As Well As Canada

On September 5 2018 the Court of Appeal of England and Wales handed down its highly awaited judgment in Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006. The Court of Appeal was asked to consider whether the High Court had erred in finding that certain documents were not protected by litigation privilege because they had been created too early during an internal investigation for litigation to reasonably be in contemplation. The court below found that documents, including lawyers' notes of witness interviews, had been created for the purpose of avoiding, rather than defending, criminal prosecution. This distinction and the decision as a whole were controversial, as their effect was to significantly narrow the circumstances in which litigation privilege could apply to records prepared as part of an internal investigation.