We refer to our earlier client alert in June 2017 on the English High Court decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2017] WLR(D) 317 where the High Court ruled that UK-incorporated multinational corporations must hand over, among other things, notes of interviews with employees. Our earlier alert reviewed the impact of the decision and the position from a Hong Kong, Singapore and US perspective - our earlier alert may be accessed here.

The UK Court of Appeal overturned the High Court's decision in its much-anticipated judgment in the case of The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006. The judgment can be found here. The judgment represents a key judicial interpretation of the boundaries of litigation privilege, particularly in the context of a criminal investigation into corporate wrongdoing.

Most importantly, the Court of Appeal agreed with ENRC that the majority of the documents in question (including notes of interviews with company employees prepared by ENRC's lawyers) were protected by litigation privilege and therefore protected from disclosure. In addition, the Court of Appeal overturned arguably the most controversial aspect of the first instance decision and found that litigation privilege can attach, even if a formal criminal investigation has not been commenced by the UK authorities.

The decision is important as it will make it easier for companies to rely on the protection afforded by litigation privilege during internal investigations conducted when a criminal investigation is in prospect. Our London colleagues have reviewed the Court of Appeal decision and its alert on details of the Court of Appeal decision may be accessed via its recent alert here.

A more detailed alert on the UK Court of Appeal judgment will follow in due course, together with some practical tips that corporates can take to maximise the prospects of privilege applying.

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