More learned minds than mine (of which there are plenty) will be analysing the Court of Appeal’s ruling in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation and the Law Society. This column will not try to anticipate them. Rather, here are a few paragraphs setting out the scope of legal advice and litigation privilege that may interest solicitors and perhaps provoke a debate.
A key one for the immediate decision - whether the Serious Fraud Office has the power to demand documents from a multinational mining company that had self-reported allegations involving corruption - reads:
’The fact that solicitors prepare a document with the ultimate intention of showing that document to the opposing party does not, in our judgment, automatically deprive the preparatory legal work that they have undertaken of litigation privilege. We can imagine many circumstances where solicitors may spend much time fine-tuning a response to a claim in order to give their client the best chance of reaching an early settlement. The discussions surrounding the drafting of such a letter would be as much covered by litigation privilege as any other work done in preparing to defend the claim.
'In both the civil and criminal context, legal advice given so as to head off, avoid, or even settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such contemplated proceedings.’
More broadly, a paragraph sets out why businesses should be able to check out allegations without fear of prosecution for doing so:
’It is... obviously in the public interest that companies should be prepared to investigate allegations from whistle blowers or investigative journalists, prior to going to a prosecutor such as the SFO, without losing the benefit of legal professional privilege for the work product and consequences of their investigation. Were they to do so, the temptation might well be not to investigate at all, for fear of being forced to reveal what had been uncovered wheaver might be agreed (or not agreed) with the prosecuting authority.’
The judgment goes on to comment on the implications for deferred prosecution agreements, a centrepiece of current efforts against corporate crime.
Finally, and it seems of particular interest to Gazette readers, are the thoughts of the appeal judges on the leading case of Three Rivers, especially the narrow definition it appears to afford to clients able to benefit from in-house professional privilege, and why this should be revisited by the Supreme Court.
The judges conclude that confining advice privilege to communications between the lawyer and an individual instructing client is no problem for small businesses, or even for large ones in the past. 'In the modern world, however, we have to cater for legal advice sought by large national corporations and indeed multinational ones. In such cases, the information upon which legal advice is sought is unlikely to be in the hands of the main board of those it appoints to seek and receive legal advice. If a multinational corporation cannot ask its lawyers to obtain the information it needs to advise that corporation from employees with relevant first hand knowledge under the protection of legal advice privilege, that corporation will be in a less advantageous position than a smaller entity seeking such advice.
'In our view, at least, whatever the rule is, it should be equally applicable to all clients, whatever their size or reach.'
In a climate where multinational mining companies are held in the same regard as cartoon villains, this is a welcome assertion, if an unpopular one. It is the equivalent of asserting that suspected terrorists have human rights or that serial rapists should receive fair trials. This is the rule of law, is it not?