International Regulatory Enforcement (PHIRE)

The Privilege to Conduct an Internal Investigation

September 06, 2018

Simon Airey & Joshua Domb

If you are a U.K. lawyer or in-house counsel specialising in corporate crime and investigations, the chances are that you slept well last night.

After almost a year and a half of uncertainty caused by the judgment of Justice Andrews in SFO v. ENRC, the Court of Appeal, led by Sir Brian Leveson, yesterday steadied the ship, restoring the eminently sensible position that, subject to the particular facts, documents created in the course of an internal investigation, including notes of interviews conducted by lawyers, are capable of being covered by litigation privilege, in circumstances where a criminal investigation or prosecution is a real likelihood.

• Subject to the particular facts, documents created in the course of an internal investigation, including notes of interviews conducted by lawyers, are capable of being covered by litigation privilege, in circumstances where a criminal investigation or prosecution is a real likelihood.

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