Invoking 'legal privilege' is no block to securing UK bribery settlement, London court hears
12 March 2018. By Ben Lucas.
Companies that invoke the right to keep certain documents out of the hands of UK bribery investigators can still reach settlements, the High Court in London heard last week.
In a probe involving a company referred to only as “XYZ,” the Serious Fraud Office agreed to sign a deferred prosecution agreement in July 2016, even though it didn’t get access to notes of interviews with employees conducted during an internal corruption probe. The company claimed these documents were protected by lawyer-client confidentiality — that is, legal professional privilege — and instead handed the SFO oral summaries of the interview notes.
Lawyers for the SFO defended the authority's decision to award a DPA at a hearing on Friday. Several unnamed claimants are taking legal action against the SFO, in a bid to get hold of XYZ’s documents that were kept out of the scope of the DPA. The claimants can’t be identified due to reporting restrictions.
“The DPA framework does not require companies to waive legal professional privilege,” Jonathan Hall, representing the SFO said.
“XYZ were digging their heels in,” Hall said. “The SFO pushed, and they pushed, and they pushed,” for the documents, he said. “There was nothing in the further lawyer notes that needed to be obtained.”
The SFO concluded at the time that the company had cooperated enough and therefore deserved a DPA, Hall said.
The claimants have argued that the legal notes would help them in a related legal case.
They have argued that the SFO didn’t take reasonable steps to obtain the documents from XYZ.
They also questioned whether the SFO should have tried harder to obtain the documents before agreeing a settlement. Catherine Callaghan, representing one of the claimants, said the SFO simply “held its hands in the air and gave up.”
Callaghan quoted several speeches by senior SFO officials, including its chief David Green and legal head Alun Milford, on how the SFO could see companies that invoke legal privilege as uncooperative and reduce their chances of securing a settlement.
“The legal-privilege claim is simply untenable,” Callaghan told the High Court.
The SFO said it had taken “reasonable” steps to obtain the documents.
“Our position remains that we have done enough,” Hall said. “We do not believe this material is going to assist the claimants.”
The court will hand down the judgment at a later date.
The issue of what types of documents produced during a company’s internal investigation that can be covered by legal privilege is currently the subject of another legal challenge at the Court of Appeal in London.
In July, Eurasian Resources Group, which is under investigation by the SFO for suspected corruption, will challenge an earlier High Court ruling, which said the company can't claim legal privilege on certain documents generated during an internal probe that should therefore be handed over to the SFO.