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13 February 2020
Issue: 7874 / Categories: Features , Procedure & practice
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Maintaining the privilege

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Jean-Pierre Douglas-Henry & Bryden Dalitz consider recent developments on legal professional privilege 
  • Communications remain privileged even if the corporate privilege holder has been dissolved.
  • Leaked email alleged to reveal dishonest conduct is not precluded from being privileged by the iniquity exception.
  • A legal note partly read out in court by counsel may retain privilege.

At the end of 2018, the Court of Appeal in SFO v ENRC overturned a first instance decision that denied a claim for litigation privilege over legal and forensic documents generated as part of an internal corruption investigation. The judge at first instance found that ENRC did not contemplate criminal prosecution even though the SFO had commenced an investigation into the company. Interestingly, the judge went on to hold that even if a prosecution had been in contemplation, none of the documents had in fact been created for the dominant purpose of litigation; and litigation privilege does not extend to documents created in order to obtain legal advice as to how best to avoid anticipated litigation including regulatory or criminal

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MOVERS & SHAKERS

Freeths—Rachel Crosier

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Projects and rail practices strengthened by director hire in London

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NEWS
Refusing ADR is risky—but not always fatal. Writing in NLJ this week, Masood Ahmed and Sanjay Dave Singh of the University of Leicester analyse Assensus Ltd v Wirsol Energy Ltd: despite repeated invitations to mediate, the defendant stood firm, made a £100,000 Part 36 offer and was ultimately ‘wholly vindicated’ at trial
The Police and Criminal Evidence Act 1984 transformed criminal justice. Writing in NLJ this week, Ed Cape of UWE and Matthew Hardcastle and Sandra Paul of Kingsley Napley trace its ‘seismic impact’
Operational resilience is no longer optional. Writing in NLJ this week, Emma Radmore and Michael Lewis of Womble Bond Dickinson explain how UK regulators expect firms to identify ‘important business services’ that could cause ‘intolerable levels of harm’ if disrupted
Criminal juries may be convicting—or acquitting—on a misunderstanding. Writing in NLJ this week Paul McKeown, Adrian Keane and Sally Stares of The City Law School and LSE report troubling survey findings on the meaning of ‘sure’
The Serious Fraud Office (SFO) has narrowly preserved a key weapon in its anti-corruption arsenal. In this week's NLJ, Jonathan Fisher KC of Red Lion Chambers examines Guralp Systems Ltd v SFO, in which the High Court ruled that a deferred prosecution agreement (DPA) remained in force despite the company’s failure to disgorge £2m by the stated deadline
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