The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice McCombe,Sir Brian Leveson,Sir Geoffrey Vos
Judgment Date05 September 2018
Neutral Citation[2018] EWCA Civ 2006
Date05 September 2018
Docket NumberCase No: A2/2017/1514

[2018] EWCA Civ 2006





Rolls Building

7 Rolls Buildings

Fetter Lane

London, EC4A 1NL





Lord Justice McCombe

Case No: A2/2017/1514

The Director of the Serious Fraud Office
Claimant / Respondent
Eurasian Natural Resources Corporation Limited
Defendant / Appellant


The Law Society

Mr Bankim Thanki QC, Ms Tamara Oppenheimer and Ms Rebecca Loveridge (instructed by Hogan Lovells International LLP) appeared for the Appellant

Mr Jonathan Fisher QC, Mr James Segan and Mr Eesvan Krishnan (instructed by Eversheds Sutherland LLP) appeared for the Respondent

Ms Dinah Rose QC and Mr David Pievsky (instructed by Reed Smith LLP) appeared for the Interveners

Hearing dates: 3 rd, 4 th and 5 th July 2018

Judgment Approved

Lord Justice McCombe

Sir Brian Leveson, President of the Queen's Bench Division, Sir Geoffrey Vos, Chancellor of the High Court, and



This appeal raises important issues as to the proper scope of legal professional privilege. The defendant, Eurasian Natural Resources Corporation Limited (“ENRC”), had asserted that certain documents generated during investigations into its activities by its solicitors and forensic accountants (the “Documents”) were the subject of legal advice privilege and/or litigation privilege. The Documents related to fraudulent practices allegedly committed in Kazakhstan and Africa, which had been notified to ENRC by a whistle-blower, and included notes made by ENRC's outside solicitors of some 184 interviews (including with its current and former employees). The Director (the “Director”) of the Serious Fraud Office (the “SFO”) claimed declarations that the Documents were not the subject of legal professional privilege. Mrs Justice Andrews essentially granted the declarations sought.


ENRC submitted that Andrews J was wrong because she misinterpreted the Court of Appeal's decision in Three Rivers District Council and Others v. Governor and Company of the Bank of England (No. 5) [2003] QB 1556 (“ Three Rivers (No. 5)”) as to the kind of documents that could be the subject of legal advice privilege. She ought not to have held that communications with a client for these purposes were only those with an employee who was specifically tasked to seek and obtain legal advice. Instead, the judge ought to have held that, to attract legal advice privilege, all that was necessary was that the employee in question was authorised by the client to provide the information to the company's lawyer. The ratio decidendi of Three Rivers (No. 5) was that only communications between client and lawyer were privileged. It was not necessary for the Court of Appeal there to decide which representatives of the client could claim privilege, because the client was the Bingham Inquiry Unit, not the Bank of England itself. The dicta concerning employees in Three Rivers (No. 5) were, therefore, obiter. In any event, ENRC submitted that the judge ought to have regarded certain of the Documents as privileged as lawyers' working papers. The SFO submitted in response that, even if Three Rivers (No. 5) were to be interpreted as ENRC claimed, it was now well-established that legal advice privilege could only be established where the dominant purpose of the communication was to obtain legal advice, which was not the case here, since the solicitors' primary engagement was to undertake an investigation into the facts.


In relation to litigation privilege, ENRC argued that the judge wrongly held that (i) no criminal prosecution was reasonably in contemplation 1 and (ii) none of the Documents was created with the sole or dominant purpose of defending anticipated criminal proceedings. On the facts, the judge was also wrong to hold that the Documents had been created on the understanding that they would be provided to the SFO. The SFO, on the other hand, contended that the judge's conclusions were amply justified on the facts.


We will return to these arguments below. It is first necessary to set out some of the factual background, which is important because ENRC ultimately contests the judge's approach to the evidence and contemporaneous documents.

Factual background


ENRC is a company incorporated under the laws of England and Wales. It is part of a multinational group of companies operating in the mining and natural resources sector. It was a public limited company until 14 th January 2014, and a FTSE-100 listed company between 2007 and 2013. Until 2009/2010, its principal operations were carried out through a wholly-owned subsidiary, Sokolov-Sarbai Mining Production Association (“SSGPO”), in Kazakhstan. At the same time, it was diversifying its operations through acquisitions of companies operating in various parts of Africa. It is undoubted that ENRC and its subsidiaries operated in countries perceived as being high risk in terms of public sector bribery and corruption (see Gross LJ at paragraphs 4–5 in R (Soma Oil and Gas Ltd) v. Director of the Serious Fraud Office [2016] EWHC 2471 (Admin)).


The SFO was constituted under section 1(1) of the Criminal Justice Act 1987 (“ CJA 1987”). Its functions include the investigation and prosecution of crimes involving serious or complex fraud, domestic and overseas bribery and corruption. Section 1(3) of the CJA 1987 allows the SFO to investigate any suspected offence which appears to the Director on reasonable grounds to involve serious or complex fraud. Section 2(4) allows the Director to require production of any specified documents which appear to him to relate to an investigation he is undertaking, and section 2(9) allows the person under investigation to refuse to disclose documents on the grounds of legal professional privilege.


In 2009/2010, ENRC became aware of allegations of criminality on the part of certain African companies that it was seeking to acquire. In particular, its mid-2010 acquisition of a company called Camrose Resources Limited (“Camrose”) gave rise to litigation (which has since settled) with a Canadian company, First Quantum Minerals (“FQM”). FQM alleged that a copper mine had been unlawfully appropriated by the government of the African country in question and sold to a company allegedly linked to a friend of that country's President. The buyer had then procured the sale of that company to ENRC as part of the Camrose deal. It was ENRC's recorded view in August 2010 that those allegations were “in large part unsubstantiated, but bearing in mind the low threshold for suspicion it is not possible to discount them completely”.


On 20 th December 2010, ENRC received an email from an apparent whistle-blower alleging corruption and financial wrongdoing within SSGPO (the “whistle-blower email”). Having brought the whistle-blower email to the attention of ENRC's board of directors, ENRC's audit committee engaged DLA Piper UK LLP (“DLA Piper”) to investigate the allegations it contained. The investigation was headed by Mr Neil Gerrard (“Mr Gerrard”), who was at the time DLA Piper's head of litigation.


On 15 th March 2011, ENRC's then general counsel Mr Randal Barker (“Mr Barker”) emailed one of the company's non-executive directors, saying:-

“I think you and the other members of the Audit Committee need to be careful not to be too bullish about regulatory risk, especially … given where we are reputationally post-Camrose (I can sense from GC 100 [an association of 100 large companies' general counsel] meetings with the MoJ and the SFO that we are firmly on the radar and I expect an investigation in due course, which is why I have upgraded our dawn raid procedures recently).”


On 8 th April 2011, there were media reports that Mr Eric Joyce MP had written to the SFO, asking it to investigate ENRC and whether it had adequate procedures to prevent bribery in connection with its acquisition of Camrose. His essential complaint was that ENRC should have asked more questions about the Camrose deal.


On 17 th April 2011, ENRC's head of compliance Mr Cary Depel (“Mr Depel”) wrote an internal email to colleagues, in which he said “I predict a sh!tstorm and a [SFO] dawn raid … before summer's over … the company's ‘books and records’ will be a [first] port of call”. That email was forwarded to ENRC's chief executive officer, and also to Mr Barker, who commented that Mr Depel was “fundamentally correct – we need to be prepared”.


Around the same time, ENRC instructed Forensic Risk Alliance (“FRA”), a firm of forensic accountants, to undertake a books and records review. The review, which was led by FRA's co-founder Mr Toby Duthie (“Mr Duthie”), began on 12 th May 2011. According to the witness statements of Mr Duthie and ENRC's solicitor Mr Daniel James Spendlove (“Mr Spendlove”), its main purpose was to identify and address issues within ENRC's accounting records that might have exposed the company to liability under bribery and corruption legislation or the Companies Act 2006, and its secondary purpose was compliance-related, namely to assist Jones Day with the legal advice that it was providing to ENRC on its compliance programme. It will be seen that the judge did not accept this evidence, and considered that the review was commissioned primarily for compliance purposes.


On 21 st April 2011, Mr Gerrard wrote a letter to Mr Barker, in response to a request to provide a written advice “in order to ensure that all possible practical steps are taken to maintain legal professional privilege over documents and communications created in relation to this investigation”. That letter, in so far as is relevant and not covered by legal advice privilege, said:-

“The internal investigation at...

To continue reading

Request your trial
18 cases
  • Tetiana Ieremeieva v Sergii Lagur
    • British Virgin Islands
    • High Court
    • 4 d4 Abril d4 2019
    ...Court in Excalibur appear to be too narrow, when subsequent and higher authority is considered. In The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited 37 the English Court of Appeal adopted the test for litigation privilege enunciated by Lord Carswell i......
  • The State of Qatar v Banque Havilland SA (a company incorporated under the laws of Luxembourg)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 30 d5 Julho d5 2021
    ...litigation would inevitably follow.” 99 A similar point arose in Serious Fraud Office v Eurasian Natural Resources Corpn Ltd [2018] EWCA Civ 2006, [2019] 1 WLR 791 (“ ENRC”) where Sir Geoffrey Vos C explained at [118]: “The policy of the board in Waugh requiring it to investigate all acci......
  • The Civil Aviation Authority v R Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 d2 Janeiro d2 2020
    ...and the judgment of this court (Sir Brian Leveson PQBD, Sir Geoffrey Vos C and McCombe LJ) in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006; [2019] 1 WLR 791 (“ Eurasian”) especially at [79]–[81] and 48 On this issue, Three Rive......
  • The Secretary of State for the Home Department v R the Joint Council for the Welfare of Immigrants
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 d2 Abril d2 2020
    ...No 1313487) (1993) 19 EHRR 112Director of the Serious Fraud Office v Eurasian Natural Resources Corpn Ltd (Law Society intervening) [2018] EWCA Civ 2006; [2019] 1 WLR 791; [2019] 1 All ER 1026, CAG (Adoption: Unmarried Couple), In re [2008] UKHL 38; [2009] AC 173; [2008] 3 WLR 76, HL(NI)Glo......
  • Request a trial to view additional results
55 firm's commentaries
  • UK Business Crime Review 2020
    • United Kingdom
    • JD Supra United Kingdom
    • 25 d2 Fevereiro d2 2020
    ...privilege at an early stage, given the difficulties it has encountered in relation to such matters in recent years (see SFO v ENRC [2018] EWCA Civ 2006, for example). In the absence of cooperation from an organization, the thorny issue of privilege will often cause significant delay to the ......
  • Aziz Rahman Gives His Thoughts On This Year's Cambridge International Symposium On Economic Crime Speeches In Interview With LexisNexis
    • United Kingdom
    • Mondaq UK
    • 16 d5 Novembro d5 2018
    ...advisors in corruption cases need to be aware of the Court of Appeal's recent judgement in the case involving the mining group ENRC. [2018] EWCA Civ 2006. The judgement means that documents prepared as part of an internal investigation are protected by privilege and so cannot be used by an ......
  • UK Economic Crime Group: Enforcement Update - October 4, 2018
    • United Kingdom
    • Mondaq UK
    • 5 d5 Outubro d5 2018
    ...delivered its judgment in the much-anticipated appeal of Director of the Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006. In this important case, the SFO's contention that internal investigations were not protected by legal professional privilege was succe......
  • Co-operation or Capitulation? – What the SFO Corporate Co-operation Guidance really means
    • United Kingdom
    • JD Supra United Kingdom
    • 1 d0 Setembro d0 2019
    ...Eurasian Natural Resources Corp Ltd [2017] EWHC 1017 (QB); Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 3 Speech to the Royal United Services Institute, 3 April 2019 4 [2018] EWHC 856 (Admin) 5 SFO v ENRC, supra note 2 above. 6 In the case ......
  • Request a trial to view additional results
2 books & journal articles
  • Private communication between lawyers as evidence in a judicial process: A comparative journey 1
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 26-1, January 2022
    • 1 d6 Janeiro d6 2022
    ...England and Wales (Sorabji, 2019) (Court of Appeal in Director of the Serious FraudOff‌ice v. Eurasian Natural Resources Corp. Ltd. [2018] EWCA Civ. 2006).31. In Canada the ‘settlement privilege’is one of the legal privileges foreseen in law, jointly with attorney-client privilege, litigati......
  • Inappropriate Adults? A Review of the Current Use of Appropriate Adults in the Criminal Justice System
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 85-1, February 2021
    • 1 d1 Fevereiro d1 2021
    ...of facilitating the client to receiveadvice from the lawyer. 15. Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006 [113].16. Imam Bozkurt v Thames Magistrates Court [2001] EWHC Admin 400.17. Ibid [18].18. Ibid Dent and O’Beirne 49 The next and most i......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT