In an eagerly awaited judgment, the English Court of Appeal has today overturned an earlier decision narrowing the scope of litigation privilege in criminal investigations in the UK. The Court of Appeal ruled that interview notes produced by lawyers during internal investigations (as well as additional categories of materials) are covered by litigation privilege and that Eurasian Natural Resources Corporation (ENRC) was not obliged to turn them over to the Serious Fraud Office (SFO).

In May 2017, the English High Court had sought to clarify the parameters of litigation privilege. In doing so, it adopted a restrictive approach – stating that litigation privilege will not be available unless it can be shown that litigation was a real likelihood (rather than a mere possibility) when the material in question was created. The High Court ruled that a criminal investigation by the SFO is not, in itself, sufficiently adversarial to fulfil this requirement.