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    APPEAL COURT RULES ON LEGAL PRIVILEGE CASE

    Decision may prompt further caution during internal investigations

    A legal decision has now been published relating to the circumstances required to successfully establish a claim to litigation privilege.

    The Court of Appeal (Criminal Division) has followed the approach adopted in the case of SFO v ENRC [2017] 1 WLR 4205 in ruling that a statement made by an employee to solicitors engaged by his employer as part of their investigation into a death at work was not covered by privilege.

    In R (for and on behalf of the Health and Safety Executive) v Paul Jukes [2018] EWCA Crim 176, the appellant had been the transport and operations manager when an employee died when he entered a baling machine. The appellant was alleged to have had responsibility for health and safety and maintenance of the machine at the relevant time and had failed to take reasonable care for the safety of employees.

    On appeal against conviction, the appellant questioned the admissibility of a statement which he had made to the company’s solicitors as part of their investigation a few weeks after the incident which was relied upon by the prosecution at the trial. The appellant argued that this statement was covered by privilege and as such should not have been relied upon by the Crown.

    The Court of Appeal disagreed with the appellant finding that the document did not enjoy the protection of privilege. Legal advice privilege could not apply the appellant was not a client of the company’s solicitors. As far as litigation privilege was concerned, at the time the statement was made the HSE were investigating the matter but had not yet commenced any proceedings. There was no evidence which showed that at the time the statement was made anybody knew what the investigations would reveal. It could not therefore be said that they considered there to be a reasonable prospect of the HSE deciding to prosecute. A claim to litigation privilege would therefore fail.

    Trilogy of privilege conditions

    The Court of Appeal judgement reiterated the essential conditions required to be met if a document is to attract privilege, namely:

    “A document will only attract litigation privilege, whether in the context of civil or criminal litigation, if three conditions are satisfied: (1) litigation is in progress or reasonably in contemplation; (2) the relevant communication or document is made or created with the sole or dominant purpose of conducting that litigation; and (3) the litigation is adversarial, not investigatory or inquisitorial”

    Pinsent Masons solicitor Kevin Bridges has explained and commented on the judgement concluding that, in light of this and other rulings on privilege, companies

    “may need to take a closer look at how they currently respond to health and safety and other incidents, when and how they investigate them and in what level of detail, when to engage specialist lawyers and the quality of the investigation reports that are produced”.

     

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