The Case Of AL- Disclosure Rights And Privilege In The Age Of DPAs

On 19 April 2018 the High Court handed down its judgment in the case R (on the application of AL) v Serious Fraud Office. The Claimant (AL) is a current defendant in criminal proceedings brought by the SFO. AL sought to judicially review the SFO's failure to initiate breach proceedings in relation to its deferred prosecution agreement ("DPA") with the company XYZ. AL argued that the SFO should have instituted breach proceedings against XYZ for its failure to disclose potentially relevant material he had sought in support of his defence. XYZ had claimed that the material was privileged.

The High Court's judgment, whilst ultimately refusing AL's claim, represents another example of how courts will apply the test for litigation privilege to internal employee interviews, conducted in connection with perceived criminal or regulatory risk. The Court admonished the SFO for failing to properly scrutinise XYZ's privilege claim, in the discharge of its obligation to protect AL's fair trial rights. Whilst the Court's application of privilege law is consistent with recent judgments, it does illustrate how the prosecution of individuals, connected with DPAs, will raise novel legal issues. In response to the judgment, the SFO is likely to be far more robust in the face of privilege claims raised by cooperating companies. Conversely, cooperating companies should assume that litigation privilege is unlikely to apply, and think carefully before claiming it.

The Facts of the case

In 2012 XYZ initiated an internal investigation into whether its executives had paid bribes. As part of that investigation XYZ's lawyers interviewed AL (and three other employees). The purpose of the interviews was to enable XYZ to decide whether to make a self-report to the SFO, which it did shortly after the interviews had been completed.

XYZ and the SFO subsequently entered into a DPA, formally approved at a hearing on 8 July 2016. Under its terms, XYZ was required to continue cooperating with the SFO in all matters relating to the underlying conduct. Specifically, XYZ was required to "disclose all [such] information and material in its possession, custody or control, which is not protected by a valid claim of legal professional privilege or any other applicable legal protection against disclosure".1

In parallel with securing the DPA, the SFO continued its investigation in to certain individuals, including AL, and requested from XYZ the notes of their interviews. In response, XYZ asserted both legal advice and litigation privilege over the notes but agreed to provide an oral summary of the interviews during a "proffer session". In delivering these summaries, XYZ's lawyers declared that the oral proffer was not to be taken...