The Sea Change Across the Pond: UK Privilege in Internal Investigations Remains in Flux

Following a series of English High Court decisions that upended standard practice for lawyers conducting internal investigations in the UK, a recent ruling suggests the British assault on privilege may be reaching its end, but the bounds of protection remain unclear.

Starting with 2016's In re RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) (RBS) and continuing through last year's Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (ENRC), the English High Court dramatically limited privilege protections in the context of internal investigations. Taken together, the decisions held that English legal advice and litigation privileges frequently do not protect attorney notes and interview memoranda generated in UK-based internal investigations, allowing disclosure of such materials to both private litigants and UK prosecutors.

Where RBS and ENRC raised alarm among practitioners, the recently decided Bilta (UK) Ltd v. Royal Bank of Scotland [2017] EWCH 3535 (Ch) (Bilta) offers hope. The decision sets limits on the principles articulated in ENRC and gives crucial guidance for attorneys seeking to protect their investigative materials. It does not, however, overrule its predecessors, and significant uncertainty about the scope of privilege in the investigations context remains.