The Law Society Intervenes in Defence of Legal Professional Privilege

5th July 2018 by

In the case of Director of the Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC) at the Court of Appeal, the Law Society is intervening in defence of professional privilege.

At issue in this case is whether documents prepared by the ENRC for an internal investigation into corruption allegations should be protected by privilege. Last year the High Court ruled, in favour of the SFO, that privilege did not apply.

Opening arguments focused on the interpretation of the Three Rivers No 5 [EWCA 2005] case when determining what constitutes legal privilege. This case, and subsequent rulings, have determined that only select groups of people, and not all employees of an organisation, can be determined to be the “client”, meaning documents prepared by other employees were not privileged.

Representing the ENRC, Bankim Thanki QC argued that this interpretation is “very narrow” and that “anyone who is an employee or former employee who learned facts during their employment should be treated as a client.”

Dinah Rose QC, appearing for the Law Society, argued that the Three Rivers No. 5 judgement was very rigid and had been too widely interpreted. She added that the High Court ruling from last year has put the English legal position on privilege “out on a limb”, and that the profession needs “authoritative and correct” guidance on Legal Professional Privilege. Maintaining that “Legal Professional Privilege is one of the fundamental characteristics on which administration of justice rests” she appealed to the court not to “duck the issue” in this case.

Robert Johnson, Head of Professional Negligence, comments “Clearly privilege is one of the fundamental corner stones of our judicial system. I welcome the possibility that this case will provide certainty on this very important issue. I hope that there is not a further erosion of a client’s right to claim privilege in respect of its documents/investigations.”