LPP features in much of the legal advice Legal Risk provides, frequently arising in the context of anti-money laundering (AML) reporting and disclosure issues, compliance audits, regulatory advice and insurance coverage.
The decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006 (the ENRC case) has attracted much press coverage, but is not the only recent decision of importance. We will not rehearse the issues in the ENRC case in detail as many others have done so, but note the importance of the decision that litigation privilege can apply in the context of internal investigations into potential corporate wrongdoing, even where the prosecuting authorities have not made a decision to commence a formal investigation. This is a point which is potentially also relevant to investigations into regulatory breaches, and is a factor when firms instruct us to advise.
In Financial Reporting Council Ltd v Sports Direct International Plc [2018] EWHC 2284 (Ch), the High Court held that the Financial Reporting Council (FRC) was entitled to production of documents, which were subject to legal professional privilege, when exercising the FRC’s statutory powers. Although privilege was a fundamental human right (a point emphasised in several other cases, including the ENRC case at first instance), it could be abrogated or overridden by primary legislation which so provided, either expressly or by necessary implication. Parry-Jones v Law Society [1969] 1 Ch. 1 was considered, and R. (on the application of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21 applied.
DAC Beachcroft LLP v Revenue & Customs [2018] UKFTT 502 (TC) is a decision of the First-Tier Tribunal Tax Chamber identifying which of certain documents on a conveyancing file involving an offshore company were subject to privilege.
In X v Y Limited [2018] UKEAT 0261_17_0908, the Employment Appeal Tribunal held that privilege could not be claimed where the advice in the email was given for the purpose of facilitating an iniquity, in this case, seeking to disguise an act of victimisation or discrimination as a dismissal for redundancy.
Links to these four recent cases can be found at www.legalrisk.co.uk/news.
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