A landmark ruling that ensures clients seeking legal advice when they fear prosecution will have their confidentiality protected has been described as a “shot in the arm” for justice.
Legal privilege allows clients to discuss their legal position candidly with their lawyers in the knowledge that the information will not have to be provided to anyone else.
However, the principle was threatened in May when a High Court judge ordered that communications and legal advice given to a company should be turned over to the Serious Fraud Office. The law firm Dechert had carried out a lengthy internal investigation for mining group Eurasian Natural Resources Corporation (ENRC) following a whistle-blowing email, with the company believing the advice it received was protected.
The High Court’s ruling that the investigation was not covered by legal privilege stunned experts, who raised serious concerns over the implications for the rule of law.
However, the Court of Appeal has overturned the decision. Earlier this month, ENRC successfully appealed in a case deemed so important that The Law Society intervened to protect the principle of legal privilege.
Christina Blacklaws, President of The Law Society, said maintaining confidentiality and trust between a client and their legal adviser was “fundamental to our legal system”.
“Our involvement wasn’t about the underlying case, but about the principles at stake,” she said.
“If the High Court ruling had been upheld, any organisation facing a prosecution – not just multinationals, but charities, newspapers, small businesses or local authorities – could have to turn over private communications with their lawyers.
“The rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure. That privilege belongs to the client, not the lawyer.”
The Court of Appeal’s decision came sooner than expected, a sign of the importance the legal profession attached to the issue.
The Serious Fraud Office opened a formal investigation into ENRC’s activities in Kazakhstan — the home country of its three founders — and Africa in 2013 following Dechert’s internal inquiry into allegations of bribery, fraud and corruption at the mining group.