Warning to GCs: Internal Investigations Not Privileged in UK

The High Court in London has ruled that an international mining company under investigation by the UK Serious Fraud Office (SFO) must turn over almost every document created by counsel during the company’s internal investigations.

The UK’s version of the attorney/client privilege is known as the legal professional privilege and is more limited. The judge in this case ruled that documents created by the company’s attorneys as part of an internal investigation are not covered by the LPP. First, she found that an SFO investigation is not the same as adversarial litigation and so the litigation privilege does not apply. Second, she found that (with limited exceptions) the documents did not constitute advice given by the company’s attorneys to its client, and so the legal advice privilege does not apply.

While the ruling is sure to be appealed, it should serve as a loud warning to the general counsel of any company which might be subject to an SFO investigation. Careful and precise thought must be given to the issue of privilege at the outset of any internal investigation, but even more caution must now be exercised if the SFO is involved. I recommend thoughtful and exhaustive consultation with outside counsel before getting started.