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Litigation privilege – wider

The CA has clarified the scope of litigation privilege. This follows widespread concern about a High Court decision which had taken a narrower view.

The case involved a mining company which faced whistleblowing allegations of corruption. It instructed external lawyers to interview staff and ex-staff. The question then arose as to whether those internal investigation documents had to be disclosed to the SFO, or whether litigation privilege applied. In the High Court, the judge applied the traditional two-fold test: (a) was litigation in ‘reasonable contemplation’, and (b) was the ‘dominant purpose’ in preparing for that litigation? In the High Court judge’s view, litigation was not reasonably in prospect, and nor was the dominant purpose in preparing for any litigation. Thus, the documents were disclosable.

This was seen by the profession as an extremely narrow approach to litigation privilege, but the CA has now restored the boundaries to what they were previously thought to be. See SFO v ENRC [2018] EWCA Civ 2006 (this case report is available in full at www.bailii.org). For a commentary see [2018] Law Society Gazette 24 September.

 

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