Metropolis litigators uttered a collective sigh of reduction as authorized skilled privilege (LPP) was upheld within the judgment of the highly-anticipated Eurasian Pure Assets Company (ENRC) case towards the Severe Fraud Workplace (SFO).
The choice has wide-ranging implications for companies and litigators alike as to what data from inside investigations is protected by privilege, after the Courtroom of Enchantment as we speak (5 September) dominated the ENRC will not be obliged to reveal a sequence of paperwork which had been requested by the SFO.
Simmons & Simmons senior associate Colin Passmore instructed Authorized Enterprise: ‘That is extremely excellent news for privilege. In the end we’ve got some severe pushback on the earlier ruling. Litigators throughout the Metropolis will little question be saying “Thank goodness, however why did it take so lengthy?”’
Mining large ENRC had argued that paperwork it ready throughout an inside investigation shouldn’t be disclosed as a result of they have been lined by LPP, however a Might 2017 Excessive Courtroom judgment from Justice Andrews dominated there was ‘a recognised public curiosity within the SFO having the ability to go about its enterprise of investigation and prosecuting crime; and the kind of proof which one would anticipate to be discovered within the disputed paperwork is more likely to be of appreciable worth to its present investigation.’
On the time, an ENRC spokesperson mentioned the corporate would attraction the choice ‘as a result of the impact of this judgment is occasion who needs to seek the advice of a lawyer in relation to an SFO daybreak raid or felony investigation will not be entitled to the protections afforded by litigation privilege’.
ENRC was subsequently granted a proper to attraction in October 2017, which led to as we speak’s judgment within the Courtroom of Enchantment.
Additionally welcoming the choice was Clifford Likelihood litigation associate and president of the London Solicitors Litigation Affiliation, Julian Acratopulo, though he famous that the Courtroom of Enchantment handed on the chance to make judgment on the separate challenge of authorized recommendation privilege. That challenge dates again to the 2004 Three Rivers case, and who particularly in an organization constitutes “the shopper” and may subsequently be protected by privilege.
He instructed Authorized Enterprise: ‘The ruling on LPP is essential as a result of it underpins your complete authorized firmament of this nation. Whereas the courtroom has given some helpful steerage on the authorized recommendation privilege, finally it mentioned it must be left for the Supreme Courtroom to find out.’
Herbert Smith Freehills disputes associate Julian Copeman agreed with Acratopulo’s evaluation, commenting: ‘It’s a great judgment nevertheless it’s a chance missed to place a nail within the coffin of the Three Rivers determination.’
The judgment famous change was wanted on the difficulty of authorized recommendation privilege, however conceded it could be higher handled by the Supreme Courtroom: ‘Within the fashionable world… we’ve got to cater for authorized recommendation sought by giant nationwide companies and certainly multinational ones. In such circumstances, the knowledge upon which authorized recommendation is sought is unlikely to be within the palms of the principle board or these it appoints to hunt and obtain authorized recommendation.’
ENRC was represented within the case by Hogan Lovells associate Michael Roberts, who instructed Bankim Thanki QC, Tamara Oppenheimer and Rebecca Loveridge of Fountain Courtroom Chambers. ENRC had beforehand been represented by Signature Litigation and its founder Graham Huntley, however Hogan Lovells took over the mandate in Might 2017.
Along with the privilege ruling, the case delivered to mild allegations from ENRC that Dechert associate Neil Gerrard had leaked confidential data to the press in July 2011 to increase the scope of the SFO’s investigation.
ENRC had enlisted Dechert and Gerrard in 2011 to help in self-reporting forward of the SFO probe, however the firm alledges Gerrard organized for privileged data to be handed on to The Instances, which wrote an August 2011 article which led to the preliminary method from the SFO.
ENRC mentioned it was pursuing authorized proceedings towards Dechert and Gerrard. The connection between ENRC, Dechert and Gerrard had already been soured after the mining large claimed to have been overcharged final 12 months.
In February final 12 months, the Excessive Courtroom dominated that the ENRC will be capable of have £11.6m payments assessed, after Grasp Rowley famous that Dechert’s billing estimates have been ‘significantly awry each time’.
A Dechert spokesperson mentioned the agency defended its work and denied what it known as ‘unfounded’ allegations: ‘We stand by the work we did and sit up for the chance of defending it in open courtroom. We observe that the felony investigation by the Severe Fraud Workplace into ENRC is constant and deplore ENRC’s try to discredit that investigation by looking for now to publicise unwarranted allegations towards Dechert and its personnel.’