In a judgment handed down at the end of 2017, but only recently released, the High Court in London has determined - in Bilta (UK) Ltd v RBS - that interviews held with employees in preparation of a report intended to deter a governmental authority (Her Majesty’s Revenue and Customs) from taking legal action are privileged. The decision of Vos LJ follows hot on the heels of the judgment of Andrews J in SFO v ENRC, where the contrary position was adopted.

As long ago as the Court of Appeal’s decision in Three Rivers (No. 5) (upheld by the then House of Lords, now Supreme Court), the test for determining whether documents are protected by litigation privilege has been that (i) litigation is in progress or reasonably in contemplation; and (ii) the communications are made with the sole or dominant purpose of conducting that litigation or anticipated litigation. In SFO v ENRC/ Andrews J applied the further stipulation that the litigation must be adversarial and not investigative or inquisitorial. On the basis that the SFO was merely investigating ENRC and had not at the time of the internal investigation decided to raise any charges, privilege was held not to apply and disclosure to the SFO ordered. Arguably, this is somewhat unrealistic and uncommercial, in circumstances where proceedings are subsequently commenced and the materials are then discoverable by the adverse party.