Any hope that the Supreme Court would quickly tackle outstanding questions surrounding legal professional privilege were dashed today when the Serious Fraud Office said it would not appeal last month’s Court of Appeal judgment in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation.
The ruling in September reversed a High Court judge’s decision that materials prepared by a mining company to investigate bribery allegations against businesses it was considering acquiring could not enjoy privilege because they had been created before a point at which criminal proceedings were contemplated. The SFO has sought access to the company's probe for its own investigation. ENRC denies any wrongdoing.
While the outcome was widely welcomed by legal professionals, they noted that the Court of Appeal had felt itself bound by an narrow definition of in-house 'client' set by the Three Rivers judgments. The appeal judges noted that this definition was unsuited to modern business practice but suggested that parliament rather than the Supreme Court should resolve the issue.
In her first major public decision since taking up her role, SFO director Lisa Osofsky appears to agree. However any prospect of parliamentary time being allocated in the current session seems remote.
The Law Society intervened in the appeal to protect the principle of legal professional privilege. Mark Paulson, the Society's head of public and criminal law, said: 'We are pleased that the SFO has accepted the court’s ruling and that the arguments put forward in our intervention have prevailed. While the SFO should have the tools it needs to be an effective prosecutor, there are boundaries which we believe must be maintained. Thankfully, the court agreed.'
He added: 'It can surely be only a matter of time before Three Rivers is tested. In the meantime, this was an important win.'
In the meantime, an SFO spokesperson warned: 'The SFO will continue thoroughly to assess the merits of all privilege claims and remains prepared to challenge those it considers to be ill founded.'
Commenting on today's announcement, Judith Seddon, co-head of international firm Ropes & Gray’s London international risk practice, said: 'This is a welcome recognition from the SFO that the Court of Appeal’s decision is correct in law and that the approach they were advocating for earlier in the case was misguided.'