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Breathe Easy, the SFO Calls It a Day in Privilege Battle

Last month we reported that the Court of Appeal (The Director of the SFO v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006) had reversed the High Court’s controversial and troubling decision from 2017 that concerned the extent to which litigation privilege could apply to documents generated in the context of internal investigations.

It was announced earlier this week that the Serious Fraud Office (SFO) will not be pursuing an appeal to the Supreme Court.  So the Court of Appeal decision stands and companies can continue to conduct their own investigations into potential wrongdoings without fear of possibly having to reveal the legal work product to prosecutors, governmental authorities or regulators at a later stage.

A note of caution however. The SFO has said that it will continue to assess the merits of privilege claims and is prepared to challenge those “it considers to be ill founded”.

In a seperate development, it appears that ENRC may have begun a judicial review of the SFO investigations into ENRC’s alleged criminal activities.  ENRC apparently will ask the Court to appoint an independent law firm to review the SFO’s handling of evidence and alleged unauthorised contact between prosecutors and the miner’s former lawyers Dechert.  Watch this space for more developments

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About this Author

Garon Anthony, Squire Patton Boggs, litigation attorney
Partner

Garon Anthony is a partner in the Litigation Practice Group. He has specialised in dispute resolution work since he qualified as a solicitor and has considerable experience in general corporate and commercial litigation work, acting for both private and public sector clients.

Garon regularly resolves disputes for clients in the financial services/insurance sector. That encompasses professional negligence, fraud issues/recovery processes, dealing with claims and complaints by customers of the mis-selling of retail products, handling insurance policy coverage disputes for corporate...

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