The decision of the Court of Appeal in Serious Fraud Office v. ENRC on the subject of legal professional privilege has been widely reported. It has generated a tsunami of relieved commentary from a legal profession happy that at least one key aspect of privilege had been rescued.
It has generated a tsunami of relieved commentary from a legal profession happy that at least one key aspect of privilege had been rescued. A lay person might be puzzled by this. Why has a case concerning a few dozen interview notes and some technical points of law caused such a strong reaction?
Privilege, which is a right of the client, is essential if that client is going to receive proper legal advice. However, this is not always recognised. The House of Lords ruling in Three
Rivers No 5 in 2004 meant that privilege was far less readily available to businesses unless litigation was in prospect.
In ENRC the SFO sought to foreclose the scope of litigation privilege as well. Among other things, it argued that a person concerned about a criminal allegation could not trigger
privilege unless he could show that there was enough evidence against himself to justify a prosecution. This was a Catch-22 worthy of Joseph Heller himself. Unfortunately, the judge at first instance concurred.
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