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ENRC CAN APPEAL THE DECISION ON PRIVILEGE

17 October 2017

The High Court has granted Eurasian Natural Resources (ENRC) permission to appeal the landmark decision on litigation privilege handed down in its investigation by the Serious Fraud Office (SFO).

Mrs Justice Andrews ruled in May that documents shared between ENRC and its former law firm during an internal investigation into alleged misconduct would not be protected by legal professional privilege in an SFO fraud trial. This led to concerns the companies would be deterred from self-reporting.

The SFO is investigating the mining giant over allegations of fraud, bribery and corruption in Kazakhstan and a country in Africa.

ENRC’s appeal could now have serious implications for what material is covered by legal privilege ahead of disclosure in investigations.

Aziz Rahman, founder of Rahman Ravelli, said: “The material that the SFO believes should not be protected by privilege is likely to be useful to its investigation.

“Andrews J ruled that litigation privilege can only protect documents prepared for litigation – not those produced as part of an investigation. The result of an appeal against this ruling will be of huge importance when companies are considering if and how they should self report.

“While the case is likely to settle what is a vital issue, it is also an indicator of the potential for challenging the SFO. ENRC may yet lose its appeal but the fact that it has been granted one shows the value and the scope for challenging aspects of an SFO case.’’

Read our article: THE SFO PROCESS AND HOW YOU CAN DEFEND ACCUSATIONS


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