Conducting Corporate Investigations – Recent Developments

Overview

Corporate investigations are an increasingly common feature of corporate activity, as illustrated by recent media headlines here and across the water.

Three recent decisions provide important guidance in this area, as follows.

Firstly, on Tuesday 4 September 2018, the Irish High Court agreed to appoint inspectors to one of Ireland's largest media groups, providing detailed analysis of its powers of appointment under section 748 of the Companies Act 20141. On the following day, the UK Court of Appeal delivered a seminal judgment on the scope of legal privilege which, while not binding, may in time have implications for disclosure in internal investigations in Ireland2. Finally, on 6 September 2018, the UK High Court held that foreign companies with a sufficient connection to the UK, which is likely to capture many Irish incorporate entities, can be ordered to produce documents held outside the jurisdiction3. Given that all three matters arose from allegations of corruption and/ or fraud, these decisions are even more significant when viewed in the context of the recently enacted Criminal Justice (Corruption Offences) Act 2018 (the "CJCA").

Power to Appoint Inspectors

Mr Justice Kelly in Independent News and Media PLC v Companies Acts [2018] IEHC 488 granted an application by the Director of Corporate Enforcement to have inspectors appointed, pursuant to section 748 of the Companies Act 2014, to Independent News and Media plc, one of Ireland's largest media organisations.

The decision, which is only the sixth occasion in almost thirty years that the High Court has appointed inspectors to a company on foot of such an application, acts as a timely reminder to companies, in view of the enactment of the CJCA, that the Court retains a powerful discretion to appoint inspectors where there are circumstances suggesting that the affairs of the company have been conducted in an "unlawful manner", which would include allegations of activity falling under the CJCA.

Privilege in internal investigations into allegations of corruption

Across the water, in a landmark decision, SFO v ENRC [2018] EWCA Civ 2006, delivered on Wednesday 5 September 2018, the UK Court of Appeal has provided important clarification regarding the scope of legal privilege under English law, which was cast into doubt by the UK High Court decision of Mrs Justice Andrews in the same case earlier this year.

In a welcome development, the UK Court of Appeal not only reversed the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT