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15 January 2018
Following the handing down of Justice Andrews's judgment in the Serious Fraud Office's (SFO's) declaratory relief application against the Eurasian Natural Resources Corporation (ENRC), it appeared that the mining company would have to disclose documents which it claimed were subject to legal professional privilege.
The judgment was widely scrutinised because of the impact that many expected it to have on the conduct of internal investigations and dealings with the SFO, since it appeared to dramatically restrict the circumstances in which documents could attract the protection of privilege. The judgment attracted substantial criticism from lawyers in the area, who felt that corporations that were attempting to cooperate with the SFO in order to report and resolve wrongdoing risked being unfairly penalised. Some commentators opined that, in any event, the case may be distinguished on its unique facts. However, it has now been confirmed – as many suspected it would – that ENRC has been given leave to appeal. On October 11 2017 Lord Justice Floyd stated that "the grounds of appeal have a real prospect of success".
The appeal hearing has not yet been scheduled, but will take place before October 31 2018.
For further information on this topic please contact Kathleen Harris, Sean Curran, Oliver Cooke or Melissa Dames at Arnold & Porter Kaye Scholer LLP by telephone (+44 20 7786 6100) or email (email@example.com, firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Arnold & Porter Kaye Scholer LLP website can be accessed at www.apks.com.
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