Helpful case on legal privilege in regulatory investigations

Posted by John Mitchell on

It is well known that, the doctrine of legal privilege prevents an investigator from seeing documents which have been created for the purpose of obtaining and giving legal advice. This High Court decision, is a useful reminder of the principle that, in order to be privileged, a document does not need to actually contain legal advice. Provided that it forms part of a continuum of communication and meetings, any document in that continuum will be protected by legal privilege, including briefing documents prepared by the client, progress reports from the lawyer and summaries of meetings prepared by the lawyer for use by the client.

The Court specifically held that these principles apply as much to regulatory investigations, as to litigation between commercial organisations;

"There is a clear public interest in regulatory investigations being conducted efficiently and in accordance with law. That public interest will be advanced if the regulators can deal with experienced lawyers who can accurately advise their clients how to respond and co-operate. Such lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client's consent."

This case here, is a useful reminder of the advantages of engaging lawyers early, in a regulatory investigation.

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John specialises in risk and compliance, advising businesses in those areas of commercial life where the criminal law or penal sanctions are used to regulate business.

John Mitchell
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