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16 March 2018 / Emilie Jones , Alan Sheeley
Issue: 7785 / Categories: Features
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What’s privileged?

Alan Sheeley & Emilie Jones review the role & scope of litigation privilege in internal investigations

  • Recent cases show that the days of claiming litigation privilege over documents without fear of challenge are gone.
  • The purpose of an investigation should be set out clearly in external and internal communications.

Internal investigations are a vital risk management tool for corporate organisations. When serious allegations of wrongdoing are made, whether by a whistleblower, regulator, third party or the media, thorough investigation enables the organisation to understand what has happened, address potential exposures, improve risk management systems and manage reputational risk. Corporate focus on internal investigations has also been fuelled by the growing number of self-reporting obligations and incentives.

Against this backdrop, businesses have been troubled by recent case law perceived to erode their ability to rely on legal professional privilege to avoid disclosing documents created during investigations to parties in subsequent civil or criminal proceedings.

However, the recent decision of Bilta v RBS [2017] EWHC 3535 (Ch) demonstrates that, in appropriate circumstances, the products of a properly structured and

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MOVERS & SHAKERS

DWF—Chris Air

DWF—Chris Air

Firm strengthens commercial team in Manchester with partner appointment

Dorsey & Whitney—Mark Churchman

Dorsey & Whitney—Mark Churchman

Private equity specialist joins as partner in London

Haynes Boone—Philipp Kurek

Haynes Boone—Philipp Kurek

International arbitration practice bolstered by London partner hire

NEWS
The government will aim to pass legislation banning leasehold for new flats and capping ground rent, introducing non-compulsory digital ID and creating a ‘duty of candour’ for public servants (also known as the Hillsborough law) in the next Parliament

An Italian financier has lost his bid to block his Australian wife from filing divorce papers in England on the basis it was no longer her domicile of choice

Reforms to the disclosure regime in the business and property courts have not achieved their objectives, lawyers have warned
The Law Society has urged ministers to hold a public consultation on the use of artificial intelligence (AI) in the justice system as a whole
Ministers have proposed bringing inquest work under a single fee scheme for legal help and advocacy legal aid work
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