Appeal court provides further guidance on litigation privilege
Last year we reported on the landmark judgment The Director of the Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation  (ENRC) in which the High Court held that documents prepared during an internal investigation were not protected either by legal advice privilege or litigation privilege. The case is pending appeal to be heard in July 2018.
Whilst we await the outcome of the appeal in ENRC, there has been an important Court of Appeal decision relevant to HSE investigations in the case of R v Jukes [25.01.2018] which further confirms the unavailability of legal privilege for witness statements during the course of internal investigations.
In Jukes, an employee convicted of health and safety breaches appealed his conviction on the ground that the evidence relied upon by the prosecution was inadmissible.
Mr Jukes was the transport and operations manager for Gaskell NW Limited (the Company). Both the Company and its Managing Director had pleaded guilty to health and safety offences stemming from a tragic incident where an employee was fatally injured in a baling machine.
Mr Jukes denied that he had responsibility for health and safety at the premises and stated that he was unaware of the guard on the baling machine being bypassed or that there was any risk an employee might access the chamber whilst it was live.
During the proceedings, the prosecution produced a statement that Mr Jukes had given to his employer’s solicitors in which he stated that he had taken over responsibility for health and safety when another employee left the Company. Mr Jukes denied the accuracy of the statement and submitted that it was protected by legal privilege and could not be relied upon by the prosecution because it was inadmissible.
Court of Appeal
The Court of Appeal rejected this submission and concluded that Mr Jukes’ claim of privilege failed at the first hurdle because his statement was not privileged at all. However, even if it were privileged, Mr Jukes’ submission that the privilege was his was misconceived. The privilege was that of the Company.
In reaching that decision the court gave support to the ENRC case by indicating that Mr Jukes prepared his statement at a time when matters were still at the investigatory stage when no prosecution decision had been made and, on that basis, identified that: "The reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution.".
Mr Jukes’ sentence of nine months’ imprisonment was therefore upheld.
This case further emphasises the circumstances in which legal privilege may not apply following an incident. It is therefore essential that caution is exercised during the early stages of an investigation in relation to the creation of documents and to be aware that only documents that are truly privileged may be protected from disclosure and use by a prosecutor.
In a recent High Court case of Bilta (UK) Limited (In Liquidation) & Ors v Royal Bank of Scotland Plc & Anor  which involved an alleged carbon credit trading fraud, RBS successfully argued that litigation privilege applied to certain internal investigation documents that had been created following the receipt of a letter from HMRC indicating that there were grounds to deny a VAT reclaim. This judgment provides some balance to the position regarding when it may properly be said that litigation was in contemplation to justify privilege applying. The High Court held that it is necessary to take a realistic and commercial view of the facts when determining whether or not litigation privilege applies.
It is a question of judgement as to when litigation is in reasonable contemplation. In the context of HSE investigations this will certainly be when formal notification that a prosecution is going to be brought is received. However, it could, depending on the circumstances, claimed to be earlier - for example when a Notification of Contravention is served. Whenever that might be, legal privilege exists only to protect the relationship between the solicitor and his client. It is unlikely to extend to statements taken from third parties including employees unless for providing legal advice to the client at a time when it can genuinely and properly be identified that litigation was in contemplation.
In light of these cases, taking advice from specialist lawyers when preparing documents for internal investigations could avoid unwelcome surprises later.