Tag Archives: Patrick Doris

Protecting Client Privilege During UK Regulatory Investigations: A Cautionary Tale from the UK’s Audit Regulator

by Susy Bullock, Patrick Doris, Michael J. Scanlon, Monica K. Loseman, David C. Ware, and Jonathan Cockfield

On June 10, 2020, Mr. Justice Trower, sitting in the English High Court, handed down his judgment in A v B [2020] EWHC 1491 (Ch). The judgment addressed the treatment of privileged documents that had been disclosed to an auditor by their clients under a limited waiver, with a finding that it was for the auditors (and not their clients) to decide, objectively, if the relevant materials could be withheld on the grounds of privilege, or should be disclosed to the Financial Reporting Council.

The judgment has implications for communications between clients and their auditors, and the practicalities associated with the sharing of privileged information in connection with audits and audit procedures performed in the United Kingdom.

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Court Of Appeal In London Overturns Widely Criticised High Court Judgment In SFO V ENRC

by Patrick Doris, Sacha Harber-Kelly, Richard Grime, and Steve Melrose

I. Introduction

Today the Court of Appeal of England and Wales issued its judgment in The Director of the Serious Fraud Office and Eurasian Natural Resources Corporation Limited[1] regarding the privileged nature of documents created in the context of an internal investigation.

The Court of Appeal reversed the High Court’s decision and found that all of the interviews conducted by ENRC’s external lawyers were covered by litigation privilege, and so too was the work conducted by the forensic accountancy advisors for the books and records review. The Court of Appeal found that ENRC did in fact reasonably contemplate prosecution when the documents were created. Moreover, while determining that it did not have to decide the issue, the Court of Appeal also stated that it may also have departed from the existing narrow definition of “client” for legal advice privilege purposes in the context of corporate investigations. Continue reading →