Jersey: Take Nothing For Granted - Legal Privilege And Internal Investigations

Last Updated: 14 December 2018
Article by Nick Williams and Rebecca McNulty

Most Read Contributor in Jersey, July 2019

The subject of legal professional privilege has been back in the spotlight recently, with the English Court of Appeal decision in SFO v. ENRC substantially reversing the original High Court decision.  This stops – at least for now – the erosion of a fundamental legal principle: that a person can seek legal advice without fear that it might be disclosed to the wider world.

Privilege is a complex topic, with a number of different strands that potentially apply in different circumstances. It is also a topic that is particularly relevant to regulated providers of trust company business in the context of investigations they may face and the duty of candour owed to their regulators. It is a concept that is easier to state in theory, than apply in practice, and so Trustees should tread carefully and take advice in order to preserve this important protection.

Every regulated business should take the time to consider its policies and procedures around internal investigations, and think carefully before embarking on any internal investigation when faced with a regulatory issue that needs investigating. The importance of doing so is all the more important if the business wishes to assert and maintain any claim to withhold privileged material from disclosure to a third party or to the Court. 

Legal advice privilege protects confidential communications between a lawyer and client for the purpose of giving or receiving legal advice (identifying who is the 'client' in that regard is key); and litigation privilege applies to documentation produced when litigation is reasonably anticipated and where the dominant purpose at the time of creation of the document is for use in relation to litigation. The underlying purpose of legal professional privilege is to protect legal communications from disclosure to the world and it enables clients and lawyers to converse freely without fear that their communications will be seized upon.  It most commonly arises in the context of giving legal advice or litigation.

Recent decisions in England and Wales have highlighted the difficulties that companies may face when trying to maintain privilege over documents produced in investigations.  The reality is that legal professional privilege is often easier to state in theory than it is to apply in practice – and that the issue of privilege needs to be considered from the outset, not once an investigation is in train.

Legal professional privilege has received a lot of attention by the Courts over the years both in England and Wales and here in Jersey with some controversial decisions along the way.  It is well established that the Jersey Courts will apply English principles in relation to questions of privilege and the Courts here have made it clear that such an approach is entirely appropriate  - not least since the general principles underlying civil litigation and the position of lawyers in that process are similar in both jurisdictions.

The latest English Court of Appeal decision in the case of the SFO v ENRC is of key importance not least because it overturned a controversial decision of the English High Court in the same case last year which had otherwise significantly narrowed the scope of litigation privilege where the High Court rejected ENRC's claims to litigation privilege over documents including interview notes and material associated with the forensic accountant's review from the ENRC's internal investigation into allegations of bribery, fraud and corruption. 

Thankfully the English Court of Appeal has restored some orthodoxy as to when litigation privilege arises and held that documents produced to investigate allegations were created for the dominant purpose of preventing or defending litigation and hence were covered by litigation privilege. And the rule as to legal advice privilege otherwise remains the same in that it protects confidential communications between a lawyer and client for the purpose of giving or receiving legal advice.

The English Court of Appeal expressed the view that that rule puts large corporations at a disadvantage where those tasked with seeking legal advice are likely to have to rely on information gathered by employees which will not necessarily be covered by privilege (unless litigation privilege applies).

The English Court of Appeal decision in the SFO v ENRC is a welcome one.  There is clearly a public interest that companies should be prepared to investigate allegations against them before deciding whether or not to self-report to the regulator.  The decision supports a culture of investigating issues when they arise and that in turn encourages a system of good corporate governance.

So what practical steps can a business take to try and maximise any claim to privilege that it might be able to make?

  • Take nothing for granted.  Consider instructing external lawyers at an early stage.
  • Set up a protocol for undertaking the investigation.  Establish a designated team with clearly defined responsibilities to undertake the investigation
  • Consider and clearly define who the 'client' is i.e. who is specifically tasked with seeking and obtaining legal advice?
  • Limit the dissemination of legal advice –circulate on a 'need to know' basis only.
  • Mark any privileged documents 'confidential and privileged'.  Be aware that simply marking a document in this way does not necessarily guarantee the document will be privileged.
  • Be aware that attaching non-privileged documents to privilege documents does not make them privileged.
  • If reports need to be drafted, ensure they are drafted by external counsel and only shared with the core investigations team – once confidentiality is lost so is privilege.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions