Pre-action Investigations: A Cautionary Tale

February 21, 2014

When there is the suspicion of wrongdoing, it is common practice for companies to carry out an investigation by commissioning reports, whether internally or with the outside assistance of lawyers or other professionals. If litigation subsequently ensues a requirement to disclose such reports to the adverse party may be extremely damaging.

Two recent English judgments (one of which was upheld by the Court of Appeal on 20 February 2014) have highlighted the need for great care to be taken when commissioning reports that might later become relevant in litigation. In both cases the reports which had been commissioned were held not to be covered by privilege and so had to be disclosed in the litigation which ensued. This update summarises the relevant English law on privilege; the background to, and rationale for, the two decisions; and the implications of them for those carrying out, or commissioning, investigations.

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