Privilege in Internal Investigations
Our Compliance & Investigations team have identified six aspects of any investigation that you will need to consider carefully in light of the recent Bilta judgment, summarised in our infographic.
Last year's High Court decision in SFO v ENRC  1 WLR 4205 caused widespread concern in the legal community as to a corporate's ability to claim litigation privilege over the output of an internal investigation conducted in the shadow of a criminal investigation by the SFO. However, in Bilta (UK) Ltd v Royal Bank Of Scotland Plc & Anor, handed down on 7th February, the Chancellor of the High Court confirmed that, given the right set of facts, it remains open to parties to claim litigation privilege over documents created during an internal investigation.
Taken together, these two first instance decisions leave considerable ambiguity over the application of litigation privilege to documents produced in an internal investigation, making life ever more challenging for in-house counsel engaged in conducting such investigations.
So what should you be doing now to protect yourself, your team and your organisation while the landscape is unclear?