The judgment is causing consternation among the legal fraternity following Mrs Justice Andrews favouring the Serious Fraud Office in its bid to obtain documents held by mining company Eurasian Natural Resources Corporation (ENRC) – essentially meaning internal documents relating to criminal investigations could now be used to assist prosecutions.  The Law Society’s President, Robert Bourns, has called the judgment “deeply alarming” in a letter to the Financial Times. He went on to say that privilege was a 'fundamental part of the relationship that solicitors have with their clients, and undermining it threatens the foundations of our justice system.' Mr Bourns said that the Law Society would be studying the decision closely.

SFO alleged corruption

The case came about after the SFO alleged fraud bribery and corruption against the multinational headquartered in London in relation to its activities in Kazakhstan and Africa. However, the company denies any wrongdoing. As part of its investigation the SFO asked ENRC to hand over certain documents but ENRC refused stating that the documents were covered by professional privilege. However, the surprise judgment said privilege did not apply to any of the documents.

Anticipated litigation

According to the court, privilege could apply only if ENRC anticipated actual criminal prosecution further explaining that LPP protects documents prepared with the sole or dominant purpose of conducting litigation, and not documents produced to enable advice to be taken in connection with anticipated litigation.