In the latest installment in the ongoing saga between international mining company, Eurasian Natural Resources Corporation (ENRC), and the Serious Fraud Office (SFO), the Court of Appeal will now hear the case. Our trainee solicitor, Tod Davies, looks at the detail.

The SFO accuses the ENRC of bribery, fraud, and corruption in relation to its activities in Kazakhstand and Africa. ENRC lost a High Court ruling on this in May, where a Judge ruled that SFO could seize ENRC’s internal documents. The ENCR protested that these documents are covered by legal privilege, and has now appealed.  

That High Court decision was met with severe criticism. This extended to the SFO itself, and its perceived ‘war’ on legal privilege. Legal experts fear that if the Court of Appeal upholds the High Court decision, the implications on corporate internal investigations will be profound.

The ruling essentially means that companies cannot assume that private documents, - including internal investigations – will be protected by legal privilege, and could be handed over to assist the prosecutors.

The Law Society has also slammed the ruling, calling it ‘alarming’, and welcoming the news it has been referred to the Court of Appeal. The Law Society President stated that anything that undermines professional privilege risks threatening the entire justice system, which depends on every person having the right to seek legal advice confidentially.

A spokesman for ENRC said that the decision had penalised them for taking responsible steps to investigate allegations made against them – so that they could properly understand what had happened and what should be done. The spokesman also indicated that if the Court of Appeal upholds the SFO’s position, it will surely discourage corporations from conducting internal investigations and self-reporting potential issues to the authorities.

A spokesman for the SFO declined to comment, although the SFO’s director, David Green, who some allege is behind this ‘war’ on legal privilege, was dismissive. Speaking at a white-collar crime conference, he stated that he had ‘complete respect’ for the long standing principle of legal privilege. But, he added, the SFO would ’not be afraid to challenge over the top claims’.