On May 8, the English High Court1 struck down the majority of claims by a company for privilege over documents prepared during an internal investigation. The UK Serious Fraud Office (SFO) sought the documents as part of its ongoing investigation into the company. This judgment has significant implications for companies undertaking internal investigations into allegations of potential criminal conduct.
In summary, the Court ruled that a claim for litigation privilege in the context of a criminal investigation will be valid only if, when the relevant documents were created, the company had sufficient knowledge about the matter to believe that there was a realistic prospect that a prosecutor will have enough material to proceed with a prosecution. The mere belief that a prosecutor will commence an investigation into the company (as opposed to a prosecution) is not sufficient to establish a claim for litigation privilege. Separately, the judge’s narrow interpretation of legal advice privilege means that notes of interviews with employees will generally not attract privilege unless they provide “clues” as to aspects of legal advice given to the company.
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