The High Court has held that documents generated by lawyers during a self-reporting investigation as part of engagement by ENRC with the Serious Fraud Office are not protected by legal professional privilege (“LPP”).
In 2011, ENRC agreed with the SFO that it would engage lawyers
to conduct a self-reporting investigation in relation to issues in its
Kazakhstan and Africa businesses. The investigation was conducted by
Dechert LLP and involved extensive witness interviews and evidence
gathering. ENRC delivered a report on issues in Kazakhstan, but shortly
before a similar report was due to be delivered on the issues in Africa, ENRC
dismissed its lawyers and asserted LPP over the fruits of Dechert’s
investigation. The SFO applied to the High Court to rule on this claim to
privilege. In a judgment delivered on 8 May 2017, the High Court (Andrews
J) has rejected the large bulk of ENRC’s claims to litigation and legal advice
privilege. The judgment is the first to consider the application of LPP
in the context of self-reporting investigations. The case was listed as
one of The Lawyer’s Top 20 Cases of 2017.
The full judgment can be read here.
James Segan and Eesvan Krishnan were instructed by the SFO, with James Segan conducting part of the argument for the SFO before the High Court.