A judgement in the case of The Serious Fraud Office v Eurasian Natural Resources Corporation (SFO v ENRC), which reasserts the principle of client-lawyer confidentiality, has been described as a "shot in the arm" for justice. In the original High Court ruling on the case, the Court had ordered ENRC to disclose to the SFO documents prepared by the company's lawyers, despite the company claiming that such documents were covered by the legal professional privilege that guards the confidential communication between clients and their legal advisors.
The Law Society intervened in the case to address matters of principle raised by the original High Court ruling; the Society's president, Christine Blacklaws, said
Our involvement wasn't about the underlying case, but about the principles at stake.
Ms Blacklaws also stated that
Maintaining confidentiality and trust between a client and their legal adviser is fundamental to our legal system. As a result of this ruling an individual or organisation facing criminal prosecution can be far more confident that discussions with their solicitors will remain confidential.
If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.
The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure. That privilege belongs to the client, not the lawyer.
We’re delighted the Court of Appeal agreed with our arguments around the practical implications of the High Court judgment.
Perversely, a lack of privilege in these cases could have made it more difficult to uncover wrongdoing, as organisations might have been less willing to investigate issues to their full extent without the protection offered by legal professional privilege.
The original ruling also appeared to exclude from the scope of that protection client discussions with lawyers aimed at reaching a settlement. We argued, and the Court of Appeal also accepted, [this] was wrong.