Investigations Round-up – Summer 2024

A recent Court of Appeal decision, Al Sadeq v Dechert LLP & Others [2024] EWCA Civ 28, provides, amongst other things, some comfort as to the applicability of legal advice privilege in the context of an investigation.   Legal advice privilege protects communications passing between lawyer and client for the dominant purpose of giving or receiving legal advice.  Questions are sometimes raised as to its applicability in an investigations context where the work of a law firm involves fact finding, as opposed (or in addition) to providing legal advice. 

The investigation at issue here was conducted by the law firm Dechert into a suspected fraud, on the instruction of the sovereign wealth fund of Ras Al Kaimah.  The Court of Appeal confirmed that Dechert had been engaged to bring their lawyers' skills to the investigatory process and to conduct it through lawyers' eyes, against a backdrop of being instructed to provide legal advice in relation to the suspected fraud.  It was therefore satisfied that legal advice privilege would attach to the Dechert work product at issue.

It should, however, be remembered that legal advice privilege is generally not as useful as litigation privilege in an investigations context.  This is because, unlike litigation privilege, legal advice privilege only operates to protect communications between the (narrowly) defined client group within an organisation (those individuals tasked with obtaining and receiving the relevant legal advice) and the lawyer.  It will not operate to protect communications with those outside the client group, and therefore will not generally protect notes of fact-finding interviews by lawyers with witnesses, including individuals within the organisation who fall outside the defined client group.  Litigation privilege, which operates to protect communications between lawyer or client and third parties, is of greater assistance in this regard – but the threshold test for it to apply must be satisfied first.