When a fraud is suspected, a business will turn to its professional advisors to investigate if wrongdoing has occurred. Witnesses will be interviewed, forensic investigators will trawl through papers and documents will pass between the business, its lawyers, and third parties. In this article, Elaina Bailes, Senior Associate at Stewarts, summarises the English law on privilege and covers four key questions fraud practitioners should ask themselves, whether trying to protect legal privilege during an investigation or later arguing for documents to be produced.
法律on privilege in England and Wales
有两种主要类型的特权：
- Legal advice privilege (“LAP”): this applies to confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice.
- Litigation privilege (“LP”): this applies to communications between clients/lawyers and third parties that have been produced for the dominant purpose of obtaining advice/evidence/information in relation to litigation, where:
o诉讼“合理地在前景”，和
o The contemplated real likelihood of litigation must be the sole or dominant purpose of the communications.
Whether either type of privilege covers a document will depend on the specific facts. The court will look at the content of the document, the purpose for which it was created, who it was created by and who it was provided to in order to establish whether the requirements of the tests are met.
- When an organisation seeks legal advice, who is the client?
When an organisation seeks legal advice, they will generally do so by tasking certain employees to engage with in-house or external lawyers. English law limits the "client" to those who are authorised to seek and receive legal advice on behalf of a client corporation. Importantly, authority to provide information to lawyers is not sufficient for these purposes.
The practical impact is that when conducting a fraud investigation, where factual information is provided to lawyers (such as through interviewing employees), this will likely not be covered by LAP. Be alive to the fact that potentially damaging information provided by employees may ultimately be disclosable. Similarly, those representing victims of wrongdoing should probe their opponents on the circumstances of the investigation and not assume that all communications with employees will be protected by privilege.
Whilst there has been much debate as to whether this definition is fit for the modern world, its applicability has been confirmed in two recent cases:RBS权益问题诉讼[2016] EWHC 3161 (Ch) andSFO v enc.[2018] EWCA CIV 2006。
- When does litigation privilege kick-in during an investigation?
LP的更广泛保护，即与第三方通信，是企业及其律师的有用工具，以完全建立事实，而不会创建以后将用于对抗它们的文件。诉讼是否“合理地在前景”的问题取决于特定案件的事实，但最近已被澄清SFO v enc..
在这种情况下，上诉法院推翻了一个有争议的第一案决定，该决定据被告无法申请，直到被告知道完整的关于可能被发现的或决定起诉的决定。上诉法院认为，如果可能的话，如果可能的情况下，可以肯定地说，这一方需要进一步调查，这种情况并不意味着程序并非合理思考。
The impact of this recent decision is helpful to those advising at the early stage of investigations, especially if the initial tip-off is speculative. It is also helpful to those advising victims, as the bringing forward of the protection should encourage businesses to fully investigate and engage with regulators/prosecutors. This should lead to wrongdoing being uncovered and rights to redress for victims.
- What evidence is required to argue a claim for privilege in the English courts?
Where a party wishes to claim that he has a right or duty to withhold inspection of a document he must state he has that right/duty and the grounds on which he claims that right or duty. The court has discretion as to whether to order disclosure.
应提供证据证明文件的负担的原则是特权载于West London Pipeline v Total[2008] EWHC 1729:
(1) A claim for privilege is an unusual claim in that the party claiming privilege and their legal advisers are judges in their own case, subject to the power of the court to inspect the documents.
(2) For that reason, the court must be particularly careful to consider the basis on which the claim for privilege is made.
（3）支助索赔提出的证据应尽可能具体，而不披露责任旨在保护特权的事项。
From a practical point of view, practitioners need to give careful thought as to how to structure evidence in sufficient detail and avoid providing only conclusory evidence.
- When determining questions of privilege, will the English courts apply the law of the jurisdiction where the documents were created?
Where businesses operate globally, documents will be created in many jurisdictions by local lawyers who will likely have considered their own legal principles on privilege. However, in proceedings in England and Wales, unless there are exceptional circumstances the court will apply the English law on privilege. This consideration can be crucial where the protection of privilege is wider in the foreign jurisdiction.
Practitioners should seek local advice as to the rules on privilege and disclosure in the jurisdiction in which the fraud took place and where assets exist. They can then make a tactical decision about the best jurisdiction in which to commence proceedings – the English laws on privilege and disclosure may assist a party obtaining documents that they would not have access to elsewhere.
The above questions illustrate that whether a document will be privileged under English law is very fact specific. It is crucial for businesses to take legal advice to ensure that they know where they stand at every stage of an investigation.
Elaina Bailes
Stewarts
