ENRC Privilege Decision: Welcome News But Difficulties Remain

A recent Court of Appeal decision has restored the orthodox position on litigation privilege, but has left the battle to be fought another day for a more workable approach to legal advice privilege (The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006).

In relation to litigation privilege, the court disagreed with the High Court's overly strict approach to whether litigation was in reasonable contemplation when the company undertook an internal investigation into alleged wrongdoing, and whether documents forming part of that investigation were for the dominant purpose of the litigation ([2017] EWHC 1017; see News brief "Investigations and privilege: a restrictive scope", www. practicallaw.com/w-008-3720). The decision is particularly helpful in dispelling the troubling suggestion at first instance that litigation privilege did not apply to documents aimed at preventing or settling litigation, as opposed to