The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation

Cathya Djanogly

In The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006 (5 September 2018) the Court of Appeal found that litigation privilege applied to documents created by the solicitors and forensic accountants of Eurasian (ENRC) during an investigation into its activities following allegations of fraud communicated to the Serious Fraud Office (SFO).

ENRC had asserted that certain documents which related to fraudulent practices allegedly committed in Kazakhstan and Africa were the subject of legal advice privilege and/or litigation privilege. The SFO had applied for a declaration that the documents were not the subject of legal professional privilege and Mrs Justice Andrews had granted the declaration.

The first issue was whether criminal proceedings were in contemplation at the time the relevant documents were created. The court found that ‘the whole sub-text of the relationship between ENRC and the SFO was the possibility if...

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