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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

Switalskis—Naila Arif, Harriet Findlay & Ellie Thompson

Switalskis—Naila Arif, Harriet Findlay & Ellie Thompson

Firm awards training contracts to paralegals through internal programme

Ward Hadaway—Matthew Morton

Ward Hadaway—Matthew Morton

Private client disputes specialist joins commercial litigation team

Thomson Hayton Winkley—Nina Hood

Thomson Hayton Winkley—Nina Hood

Cumbria firm appoints new head of residential property

NEWS
Freezing orders in divorce proceedings can unexpectedly ensnare third parties and disrupt businesses. In NLJ this week, Lucy James of Trowers & Hamlins explains how these orders—dubbed a ‘nuclear weapon’—preserve assets but can extend far beyond spouses to companies and business partners 
A Court of Appeal ruling has clarified that ‘rent’ must be monetary—excluding tenants paid in labour from statutory protection. In this week's NLJ, James Naylor explains Garraway v Phillips, where a tenant worked two days a week instead of paying rent
Three men wrongly imprisoned for a combined 77 years have been released—yet received ‘not a penny’ in compensation, exposing deep flaws in the justice system. Writing in NLJ this week, Dr Jon Robins reports on Justin Plummer, Oliver Campbell and Peter Sullivan, whose convictions collapsed amid discredited forensics, ‘oppressive’ police interviews and unreliable ‘cell confessions’
A quiet month for employment cases still delivers key legal clarifications. In his latest Employment Law Brief for NLJ, Ian Smith reports that whistleblowing protection remains intact even where disclosures are partly self-serving, provided the worker reasonably believes they serve the ‘public interest’ 
Family law must shift from conflict-driven litigation to child-centred problem-solving, according to a major new report. Writing in NLJ this week, Caroline Bowden of Anthony Gold outlines findings showing overwhelming support for reform, with 92% agreeing lawyers owe duties to children as well as clients
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