Statements provided to solicitors during internal investigations may not attract litigation privilege

In R (for and on behalf of the Health and Safety Executive) v. Paul Jukes [2018] EWCA Crim 176, it was held that a statement made by an employee to his employer’s solicitors in connection with the investigation of a workplace fatality a few weeks earlier (the “Investigation Statement”) did not attract litigation privilege. Had a prosecution been in contemplation at the time the statement was provided, it may then have been privileged and not admissible in proceedings.

In December 2010, a fatality occurred at Gaskells NW Limited (“the Company”) where an employee entered a baling to clear a blockage and was killed. Paul Jukes, the transport and operations manager of the Company, was subsequently sentenced to nine months’ imprisonment for failing to take reasonable care of employees’ health and safety and failing in his responsibilities for maintenance of the machine which caused the fatality. The prosecution relied on the Investigation Statement he had made to his employer’s solicitors during the investigation of the incident.

Jukes appealed and argued that the Investigation Statement was privileged and should not have been relied upon by the prosecution at trial. Legal advice privilege could not apply as Jukes was not the solicitors’ client: the Company was. Jukes had claimed in the Investigation Statement that he had taken over formal responsibility for health and safety at the Company when his colleague was made redundant.

The Health & Safety Executive (“HSE”) were investigating the incident at the time the Investigation Statement was made. However, it was not clear at the time of the HSE’s investigation what findings would be made, or whether any criminal proceedings would be brought.

Some sixteen months after the Investigation Statement, the HSE and the police interviewed Jukes. During that interview he denied that he was in charge of health and safety, which was inconsistent with his earlier Investigation Statement.

The appeal judgment confirmed the conditions laid down in Three Rivers District Council v. Governor and Company of The Bank of England (No.6) [2004] UKHL 48 in deciding that the Investigation Statement was not protected by litigation privilege. The three conditions to be satisfied are that:

1. Litigation must be in progress or reasonably in contemplation;
2. The relevant communication or document is made for the sole or dominant purpose of conducting that litigation; and
3. The litigation must be adversarial, not investigatory or inquisitorial

At the time Jukes provided the Investigation Statement, it was unclear whether any litigation would follow. The HSE had still not decided whether it would be prosecuting when it conducted its interview sixteen months after the original Investigation Statement had been made; rather, it was still investigating the matter so that it could then decide what steps may be appropriate. Before deciding to prosecute a crime, a relevant authority must be satisfied that there is sufficient evidence to provide a reasonable prospect of conviction and it must also be in the public interest to proceed with a criminal prosecution. In that regard, the threshold to be met for claiming litigation privilege in the context of potential criminal proceedings is potentially higher than for civil proceedings where a prospective claimant is not required to meet any threshold test before it could commence proceedings, such that litigation could be reasonably contemplated even if the prospects of success were low. Jukes’ appeal was therefore dismissed.

The Jukes case followed the approach taken in The Director of the Serious Fraud Office (“SFO”) v. Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB) (“ENRC”). ENRC had agreed to cooperate with the SFO concerning ENRC’s internal investigation into allegations of fraud and bribery at ENRC’s operations in Kazakhstan and Africa. The SFO commenced a criminal investigation and requested ENRC to produce documents. ENRC refused on the basis that the documents were protected by legal privilege and/or litigation privilege. The claim for litigation privilege failed. Andrews J held in ENRC that litigation privilege did not apply as ENRC failed to establish it was “aware of circumstances which rendered litigation between itself and the SFO a real likelihood rather than a mere possibility”. Our Law Now article on the ENRC case can be found here. That decision is currently subject to appeal to the Court of Appeal in the summer.

The decision in the Jukes case confirms that not all statements provided when internal investigations are conducted will attract litigation privilege. Companies should be aware of this when statements are being obtained internally as part of a wider investigation, but where it is not yet clear whether a prosecution will follow. While in Jukes the court did not need to cover the issue, because it had determined that litigation was not reasonably in contemplation at the time of his interview, companies should also be aware that even if they can meet that threshold test they would still also need to be able to show that the dominant purpose in taking the statement was for the contemplated litigation. If the real reason for taking the statement was different – e.g. simply part of a root cause analysis to learn lessons, or as part of a disciplinary process, it may be difficult to satisfy the court that litigation privilege applied.

The case judgment can be found here.