The UK Court of Appeal overturned [judgment] a lower court ruling on Wednesday, broadening the country’s understanding of what may be protected from litigation under the legal advice privilege.
The Eurasian Natural Resources Corporation (ENRC) was compelled by the London High Court to disclose documents that were produced after potential issues of fraud were brought to the company’s attention. ENRC then sought outside counsel to investigate the reports.
The lower court reasoned that legal advice privilege could not be invoked when litigation was uncertain. The appeals court contradicted this view and explained litigation does not need to be definite just reasonably certain. The appeals court also clarified that the privilege is not limited to documents created for the dominant purpose of seeking legal advice.
The Serious Fraud Office started the ENRC investigation into in 2013 over allegations of bribes to win mineral assets in Kazakhstan, Zambia and the Democratic Republic of Congo.
