SFO v ENRC: Legal professional privilege in internal investigations

07 Aug 2017 CaseWatch

After a whistle-blower conveyed allegations of fraud and corruption within its Kazakhstan subsidiary, the Eurasian Natural Resources Corporation Ltd (“ENRC”) instructed external counsel to investigate. As part of this investigation, ENRC’s external counsel conducted interviews with employees from ENRC, ENRC’s subsidiaries and its suppliers (“Interviews”). A forensic accountant was also engaged to identify controls, systems weaknesses and potential improvements.

Seeking to avail itself to the Serious Fraud Office’s (“SFO”) self-reporting regime for cases of overseas corruption, ENRC began a dialogue with the SFO. This dialogue was terminated by the SFO after ENRC decided to dispense with the services of its external counsel which was responsible for the investigations and which had been representing ENRC in its dealings with the SFO. The SFO commenced a criminal investigation into ENRC’s affairs and sought production of, amongst other things, the notes taken by ENRC’s former external counsel of the Interviews it conducted (“Interview Notes”) and the reports and documents generated by the forensic accountants’ review. ENRC asserted litigation privilege over these two classes of documents and legal advice privilege over the Interview Notes. The English High Court (Andrews J) decided in SFO v ENRC that neither privilege was applicable and ordered production of these two classes of documents.

If you have any queries or would like to know more about how these changes may impact you, please contact:

Joint Head – Commercial & Corporate Disputes Practice
Joint Head – Corporate Governance & Compliance Practice
Joint Head – Financial Services Regulatory Practice
d +65 6416 8138
e joy.tan@wongpartnership.com
Click here to see Joy’s CV.

Annabelle YIP
Joint Head – Corporate Governance & Compliance Practice
d +65 6416 8249
e annabelle.yip@wongpartnership.com
Click here to see Annabelle’s CV.