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
