The landmark ruling from the Court of Appeal ensures that clients seeking legal advice when they fear prosecution will have their confidentiality protected. Hogan Lovells argued that sensitive documents created by lawyers and other advisers during an internal investigation into mining company Eurasian Natural Resources Corporation (ENRC) are protected by litigation privilege.

Privileged communications

The decision is significant for disputes and reassures businesses they can obtain legal advice on sensitive matters without worrying about confidentiality. The principle of ‘legal professional privilege’ in a client’s communications with their lawyers led the Law Society of England and Wales to intervene in the case of The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (SFO v ENRC). Law Society president Christina Blacklaws said, ‘maintaining confidentiality and trust between a client and their legal adviser is fundamental to our legal system,’ adding ‘as a result of this ruling an individual or organisation facing criminal prosecution can be far more confident that discussions with their solicitors will remain confidential.’ Ms Blacklaws explained, ‘if the High Court ruling had been upheld, any organisation facing a prosecution, not just multinationals, but charities, newspapers, small businesses or local authorities, could have to turn over private communications with their lawyers.
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Historic ruling

Hogan Lovells was instructed to represent ENRC following the first instance decision, and successfully argued that documents prepared during an internal investigation are protected by litigation privilege. Michael Roberts, Partner at Hogan Lovells representing ENRC commented ‘this historic ruling by the Court of Appeal is significant not just for ENRC but for any company faced with undertaking an internal investigation in response to a whistleblower or other allegation of wrongdoing. It is critical that companies are not penalised for acting responsibly, and are able to instruct lawyers to conduct investigations without fear that the authorities will later be able to demand all of the lawyers' work product.  Following this ruling, it will remain for the company to decide whether, and to what extent, it is prepared to waive privilege.’