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Legal ruling could threaten companies’ right to keep ‘privileged’ documents from enforcers

A High Court judgment handed down last week could provide the Health and Safety Executive (HSE), local authorities and other safety enforcement bodies with the means to obtain legally privileged documents, argue legal experts.

Legal ruling could threaten companies’ right to keep ‘privileged’ documents from enforcers
The legal ruling took place at the High Court. Image credit: © iStock/ komargallery

The Health and Safety at Work Act provides an exemption under s 20(8) for companies producing privileged documentation, which prevents regulators from accessing internal documents such as interview records when they are prepared for the purpose of instructing legal representatives.

However, law firm Keoghs warns that Mrs Justice Andrews’s ruling on 8 May, which allowed the Serious Fraud Office (SFO) to obtain documents withheld by mining company Eurasian Natural Resources Corporation (ENRC), could have wider implications for regulatory investigations and encourage other regulators, such as the HSE to demand sight of documents that are prepared subject to professional privilege.

The SFO launched its own criminal investigation of ENRC in 2013 following allegations of fraud and bribery in the multinational’s mining operations in Kazakhstan and Africa. ENRC had carried out its own internal investigation two years earlier and had resisted SFO’s request to hand over relevant, internal documents, which it argued were protected by legal professional privilege. Andrews ruled, however, that the privilege did not apply to most of the documents in the four categories, which the High Court was asked to rule upon.

According to a report in the Law Society Gazette, Andrews said that legal professional privilege protects documents prepared with the sole or dominant purpose of conducting litigation, and not documents produced to enable advice to be taken in connection with anticipated litigation. According to the court, privilege could apply only if ENRC anticipated actual criminal prosecution.

The mining company is mounting an appeal but Keoghs warns that, in the interim, businesses should not assume that interview records with its officers and employees can lawfully be withheld from prosecuting agencies.

Andrew Smith, partner at criminal defence firm Corker Binning, said that companies will be challenged to show that documents created during an internal investigation, such as interview records, were created for the “dominant purpose” of future litigation.

He added that it would be impossible to achieve in many investigations. “Companies will be unable to assess the prospects of future litigation without conducting interviews or instructing experts, which means that this work is necessarily conducted for a purpose other than its use in potential future litigation.”

Mike Appleby, partner at Fisher Scoggins Waters, told IOSH Magazine that businesses should take note. He said: “It is not uncommon for lawyers in health and safety cases to give instructions for an accident investigation for the purpose of advising their clients. This ruling limits the circumstances for claiming the investigation report is privileged, therefore running the risk that it may end up as a prime exhibit in a future prosecution.” 

 

Nic Warburton is acting editor, IOSH Magazine

 Nick Warburton is acting editor of IOSH Magazine. He is a former editor of SHP and has also worked on Local Authority Waste and Recycling and Environmental Health Practitioner

Comments

  • With regard to comments made

    Permalink Submitted by M. Eden on 19 May 2017 - 01:12 pm

    With regard to comments made about accident investigation, an employer is legally obliged to carryout and investigation in to an accident and report it to the HSE if necessary. So how can a solicitor instruct a client to carry out an accident investigation and claim it is a "privileged document". I am led to believe that any investigation authority can obtain "privileged documents" with a court order if it is deemed necessary.

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  • This does seem to be

    Permalink Submitted by Phil Pinnington on 19 May 2017 - 02:14 pm

    This does seem to be something that would make the legal profession a little anxious but I'm not completely sure it's as momentous as it appears. Suggesting that instructions to legal advisors could be in scope of this change is a little far fetched. Any regulator using this as case law would have to argue public interest and clear justification that vital information was being concealed.
    The SFO obviously proved their case and it will be up to the courts to decide whether or not it sets the correct precedence.

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  • Can I say that the level of

    Permalink Submitted by Anonymous on 1 June 2017 - 08:59 pm

    Can I say that the level of disclosure may be determined by the severity of the case and how prosecution evidence has been obtained, It may be that the level of prosecution dictates the level of information to be disclosed. Therefore the more sever the offence the more information needs to be disclosed, In light of this, in criminal cases evidence needs to be disclosed whether it prejudices the defence or not, the same being for the persecution.

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