The decision indicates that company counsel should consider early how best to anticipate challenges to privilege claims over investigation materials.

Introduction -

A recent English High Court decision has important consequences for the application of legal professional privilege in internal corporate investigations. The decision, Bilta (UK) Ltd v Royal Bank of Scotland Plc [2017] EWHC 3535 (Bilta), has reconfirmed that litigation privilege under English law can apply in “internal investigations by corporates in the face of scrutiny by government authorities.” As such, Bilta provides some contrast to last year’s decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (ENRC). ENRC held that litigation privilege did not apply in an internal investigation conducted for the purpose of engaging in discussions with, and responding to, the Serious Fraud Office (SFO).