A mining company at the centre of an investigation by the Serious Fraud Office (SFO) has been granted permission to appeal against a landmark order that required it to hand over a raft of internal documents which the watchdog successfully claimed were not covered by professional privilege.
In an order published yesterday, the Court of Appeal said it would hear the case, adding that an appeal by the Eurasian Natural Resources Corporation (ENRC) had a ‘real prospect of success’.
The initial High Court ruling, handed down in May, ruled in favour of the SFO. The watchdog, which has alleged bribery and corruption against ENRC, claimed that documents prepared for ENRC’s own internal investigation should not be covered by professional privilege. ENRC strenuously denies the bribery and corruptiom allegations.
If the Court of Appeal upholds the ruling, legal experts fear, this could result in internal documents relating to criminal investigations being handed over to assist prosecutions.
After the High Court judgment solicitors said the case would have ’profound implications’ for corporate internal investigations. The Law Society also slammed the ruling, stressing that anything that undermines professional privilege risks threatening the entire justice system.
A spokesperson for ENRC said: ’This was a decision which in our view seems to penalise ENRC for responsibly taking steps to thoroughly investigate the allegations so that it could properly understand what had happened and what should be done. It certainly would not seem to encourage corporate transparency and good governance going forward.’
The case has also prompted criticism of the SFO which, according to some lawyers, has ‘waged a war’ against what it believes to be unjustified claims of legal privilege.
Yesterday, speaking during a white-collar crime conference, SFO director David Green dismissed ‘stories flying around that the SFO is somehow anti-privilege’.
Green said he had ‘complete respect’ for the long standing principle of legal privilege but added that the SFO would ’not be afraid to challenge over the top claims’.
The SFO declined to comment.
Christina Blacklaws, vice president of the Law Society, said it welcomed the decision.
’The original ruling gave a narrow interpretation of legal advice privilege and litigation privilege. There are worrying ramifications for corporations trying to do the right thing in conducting internal investigations and self-reporting potential issues to authorities,’ Blacklaws said.
She added: ’It is important that corporate and other clients have certainty about what is covered by privilege. We hope this appeal will provide the reassurance clients are seeking. We believe the right to confidential communication between clients and their lawyers must be protected and we are taking a very close interest in the progress of the appeal.’