Clifford Chance
English Court of Appeal Overturns Lower Court Decision in ENRC
7 September 2018
Cross-border investigations are fraught with potential pitfalls unless all of the relevant laws, practices and customs are considered when planning the approach and strategy. One key aspect is managing to the client’s best advantage the differing laws of privilege. On September 5, 2018, the English Court of Appeal in SFO v. ENRC, [2018] EWCA Civ 2006, overturned the High Court decision from May 2017 which held that interview notes prepared by external counsel for ENRC during an internal investigation were not protected by any privilege and had to be produced to the SFO. In overturning the High Court decision, the Court of Appeal held that because ENRC reasonably contemplated litigation with the SFO when it commenced its internal investigation in 2011, the interview notes generated during the investigation were protected by the UK litigation privilege. While important differences still remain between the levels of protection afforded by the US attorney-client privilege and attorney work-product doctrine compared with the UK litigation and legal advice privileges, the Court of Appeal's decision in ENRC helpfully clarifies the reach of the litigation privilege.
