Accountability — April 2014: always a privilege (or maybe not)
The decision of the Court of Appeal in Rawlinson & Hunter Trustees SA and Ors v Akers & Anr  EWCA Civ 136 has highlighted the difficulties in establishing litigation privilege in relation to internal reports, particularly those obtained by liquidators.
In order for litigation privilege to apply to a particular document, litigation must exist or be in reasonable contemplation and the document must have come into existence for the dominant purpose of obtaining information or advice in connection with or assisting in the conduct of that litigation.
This decision arises out of the claim for damages brought against the Serious Fraud Office (SFO) by the Tchenguiz brothers for allegedly unlawful raids, arrests and investigations. The issue before the court was whether five reports that had been prepared by a firm of accountants on the instructions of liquidators of a separate company were subject to litigation privilege. The judge at first instance, Mr Justice Eder, had concluded they were not. The Court of Appeal upheld his decision with Lord Justice Tomlinson giving the lead judgment…
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