Every business, and every in house lawyer, will at some point be involved with an enquiry, an investigation, or potential litigation. During litigation, documents – including emails, attendance notes and reports – which are relevant to the litigation may have to be disclosed if they are not privileged.
So businesses need to know how it can assess litigation risk or conduct an enquiry without creating documents that it then has to produce and which may be detrimental to its position. The law on this issue has recently been considered by the Court of Appeal in two key cases: WH Holding Ltd v E20 Stadium LLP and SFO v Eurasian Natural Resources Corp Ltd.
In this webinar recording, our experts Mark Daniels and Helen Simm provide you with the key information you need to identify these issues when they arise and to know how you can best protect your position.
Your employees, their future employers, and your intellectual property - July...Browne Jacobson LLP
Innovation and creativity is driven by your people. How do you as a business encourage innovation, capture the relevant IP assets and reward your innovators? What happens when a key individual leaves the business – how do you ensure that your R&D crown jewels remain legitimately protected? In a market of ever increasing competitive collaboration, setting up the right strategy to ensure the appropriate safeguards are in place and are communicated to your employees is important.
BoyarMiller ACC Oct 11 2022 Presentation.pptxBoyarMiller
BoyarMiller Shareholders Chris Hanslik and Andrew Pearce, alongside Celina Carter of BWC Terminals, shared their professional corporate real estate experience regarding leasing for smooth business operations.
In this session, they covered the key aspects of leases, including:
-What is “privilege”
-Tips for preserving privilege
-Avoiding spoliation of evidence
Corporate Law and Family Law at the Crossroads: Spouses as Shareholders in Canada 2012
Small and medium sized businesses are the engines which drive the North American economy. Increasingly, people go in to their own business. Often spouses and other family members are in business together. Because of mutual trust and sharing which exists at the start of these arrangements, spouses tend not to make agrements about what will happen if the marriage breaks down.
When spouses who are in business together divorce, there are also consequences for the business. Who will keep the business? What will the spouses be able to work together? How much is the business worth? Who should buy the business? How will a buyout be funded? These questions are just the tip of the iceberg.
In this PowerPoint slide presentation, we provide useful information about the legal problems confronting separating or divorcing couples who are in business together. By reviewing these slides you will gain important insights about the issues lawyers have to deal with in these situations. What law applies? What other kinds of experts do you need? What legal advice will you need to find a workable resolution? What evidence will you need if the case has to go to trial? What procedure must be followed? If you are in business with your spouse or life partner, the information in these slides provides a few pointers about Ontario law even if the relationship is continuing. Sometimes, a unanimous shareholders’ agreement or some strategic advice can help avoid expensive litigation down the road.
These slides were part of a presentation at a lawyers conference conducted by Osgoode Professional Development in Toronto on March 27, 2012. They are intended as information only and not legal advice.
The authors are experienced litigation and arbitration lawyers in Toronto, Ontario, Canada, who act on complex shareholder disputes, typically involving closely-held corporations.
The theft of trade secrets and other confidential information occurs all too frequently in today’s global, highly mobile, competitive marketplace. Ensuring that effective preventative measures are in place is essential to minimizing the risk of a data breach. At the same time, it is critical that companies act quickly and decisively to protect their trade secrets when employees move from one employer to another.
Topics covered in this presentation include:
•Protecting Your Trade Secrets
•Conducting a Trade Secret Theft Investigation
•Working with FBI and Law Enforcement After Information is Stolen
•Civil Remedies for Trade Secret Theft
Intellectual Property (IP) and Alternative Dispute Resolution (ADR): Using M...Erica Bristol
This PowerPoint discusses the use of mediation-pre-litigation and during litigation-to resolve intellectual property disputes, including a discussion of the difference between California and federal mediation confidentiality and privilege, and considerations when drafting mediation clauses in licenses and other contracts.
Your employees, their future employers, and your intellectual property - July...Browne Jacobson LLP
Innovation and creativity is driven by your people. How do you as a business encourage innovation, capture the relevant IP assets and reward your innovators? What happens when a key individual leaves the business – how do you ensure that your R&D crown jewels remain legitimately protected? In a market of ever increasing competitive collaboration, setting up the right strategy to ensure the appropriate safeguards are in place and are communicated to your employees is important.
BoyarMiller ACC Oct 11 2022 Presentation.pptxBoyarMiller
BoyarMiller Shareholders Chris Hanslik and Andrew Pearce, alongside Celina Carter of BWC Terminals, shared their professional corporate real estate experience regarding leasing for smooth business operations.
In this session, they covered the key aspects of leases, including:
-What is “privilege”
-Tips for preserving privilege
-Avoiding spoliation of evidence
Corporate Law and Family Law at the Crossroads: Spouses as Shareholders in Canada 2012
Small and medium sized businesses are the engines which drive the North American economy. Increasingly, people go in to their own business. Often spouses and other family members are in business together. Because of mutual trust and sharing which exists at the start of these arrangements, spouses tend not to make agrements about what will happen if the marriage breaks down.
When spouses who are in business together divorce, there are also consequences for the business. Who will keep the business? What will the spouses be able to work together? How much is the business worth? Who should buy the business? How will a buyout be funded? These questions are just the tip of the iceberg.
In this PowerPoint slide presentation, we provide useful information about the legal problems confronting separating or divorcing couples who are in business together. By reviewing these slides you will gain important insights about the issues lawyers have to deal with in these situations. What law applies? What other kinds of experts do you need? What legal advice will you need to find a workable resolution? What evidence will you need if the case has to go to trial? What procedure must be followed? If you are in business with your spouse or life partner, the information in these slides provides a few pointers about Ontario law even if the relationship is continuing. Sometimes, a unanimous shareholders’ agreement or some strategic advice can help avoid expensive litigation down the road.
These slides were part of a presentation at a lawyers conference conducted by Osgoode Professional Development in Toronto on March 27, 2012. They are intended as information only and not legal advice.
The authors are experienced litigation and arbitration lawyers in Toronto, Ontario, Canada, who act on complex shareholder disputes, typically involving closely-held corporations.
The theft of trade secrets and other confidential information occurs all too frequently in today’s global, highly mobile, competitive marketplace. Ensuring that effective preventative measures are in place is essential to minimizing the risk of a data breach. At the same time, it is critical that companies act quickly and decisively to protect their trade secrets when employees move from one employer to another.
Topics covered in this presentation include:
•Protecting Your Trade Secrets
•Conducting a Trade Secret Theft Investigation
•Working with FBI and Law Enforcement After Information is Stolen
•Civil Remedies for Trade Secret Theft
Intellectual Property (IP) and Alternative Dispute Resolution (ADR): Using M...Erica Bristol
This PowerPoint discusses the use of mediation-pre-litigation and during litigation-to resolve intellectual property disputes, including a discussion of the difference between California and federal mediation confidentiality and privilege, and considerations when drafting mediation clauses in licenses and other contracts.
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
Part of the webinar series: Commercial Litigation Funding 2021
See more at https://www.financialpoise.com/webinars/
Final Project Intro To Legal Systems becoming a paralegal in North CarolinaChris Harden
Project for Introduction to Legal Systems covering topics such as: employment opportunities, roles of the paralegal, requirements to become a certified paralegal, the paralegal\'s day-to-day activities.
Can a Copy of a Will be Legally Valid.pptxvidyabala38
One of the most important steps in guaranteeing the fair transfer of one's possessions after death is to write a will. But what happens if there appears to be a replica of the will rather than the original? Is it possible to prove and recognize a copy legally? We'll explore the legal nuances pertaining to a replicated will's legality in this blog post.
The rise of entrepreneurs and internet publishing has also lead to growth in intellectual property (IP) needs. From copyright and trademarks to patents, IP law is a hot area as the economy grows. However, whether you're looking to create a new practice group or just integrate a few new cases, IP is not just an area of law to tackle on your own. IP is its own practice area that requires specialized knowledge. Get a jump on including IP law in your practice by attending this webinar.
Join Clio's Joshua Lenon and Nehal Madhani of the Alt Legal, provider of docketing and assembly tools for IP law firms, as they discuss:
What is involved in running an IP law practice,
What are the ethical obligations of IP law,
Tools required by IP lawyers, and
Talking with clients about their IP needs.
Employment law update - Browne Jacobson Exeter - 06 February 2020Browne Jacobson LLP
These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR Managers and HR Directors.
At these events we will present an overview of what we consider to be the most significant developments in 2019, and what they teach us about managing your workforce – together with our practical tips.
You will also hear about what is coming up in 2020, and how you can get ready for what will be another busy year in employment law.
Earlier this year Edward Timpson’s review on school exclusions raised the profile of the practice of exclusions, managed moves and alternative provision. Head teachers and governors are now under increasing scrutiny to conduct the end-to-end process in a fair and consistent manner (and in line with the statutory guidance) to ensure that the best possible outcome for the school, its staff, its pupils and the parents is achieved.
In this webinar, Senior Associate Hayley O’Sullivan, explores the current exclusions landscape, looks at prospective changes to policy and practice and share examples of best practice to help you avoid common pit-falls when it comes to managing exclusions.
Hayley also provides an overview to the existing statutory guidance, proposed developments in relation to managed moves and alternative provision and share her thoughts on the anticipated changes in regulation as a result of the review.
More Related Content
Similar to Privileged communications webinar, March 2019
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
Part of the webinar series: Commercial Litigation Funding 2021
See more at https://www.financialpoise.com/webinars/
Final Project Intro To Legal Systems becoming a paralegal in North CarolinaChris Harden
Project for Introduction to Legal Systems covering topics such as: employment opportunities, roles of the paralegal, requirements to become a certified paralegal, the paralegal\'s day-to-day activities.
Can a Copy of a Will be Legally Valid.pptxvidyabala38
One of the most important steps in guaranteeing the fair transfer of one's possessions after death is to write a will. But what happens if there appears to be a replica of the will rather than the original? Is it possible to prove and recognize a copy legally? We'll explore the legal nuances pertaining to a replicated will's legality in this blog post.
The rise of entrepreneurs and internet publishing has also lead to growth in intellectual property (IP) needs. From copyright and trademarks to patents, IP law is a hot area as the economy grows. However, whether you're looking to create a new practice group or just integrate a few new cases, IP is not just an area of law to tackle on your own. IP is its own practice area that requires specialized knowledge. Get a jump on including IP law in your practice by attending this webinar.
Join Clio's Joshua Lenon and Nehal Madhani of the Alt Legal, provider of docketing and assembly tools for IP law firms, as they discuss:
What is involved in running an IP law practice,
What are the ethical obligations of IP law,
Tools required by IP lawyers, and
Talking with clients about their IP needs.
Employment law update - Browne Jacobson Exeter - 06 February 2020Browne Jacobson LLP
These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR Managers and HR Directors.
At these events we will present an overview of what we consider to be the most significant developments in 2019, and what they teach us about managing your workforce – together with our practical tips.
You will also hear about what is coming up in 2020, and how you can get ready for what will be another busy year in employment law.
Earlier this year Edward Timpson’s review on school exclusions raised the profile of the practice of exclusions, managed moves and alternative provision. Head teachers and governors are now under increasing scrutiny to conduct the end-to-end process in a fair and consistent manner (and in line with the statutory guidance) to ensure that the best possible outcome for the school, its staff, its pupils and the parents is achieved.
In this webinar, Senior Associate Hayley O’Sullivan, explores the current exclusions landscape, looks at prospective changes to policy and practice and share examples of best practice to help you avoid common pit-falls when it comes to managing exclusions.
Hayley also provides an overview to the existing statutory guidance, proposed developments in relation to managed moves and alternative provision and share her thoughts on the anticipated changes in regulation as a result of the review.
Local authority acquisition and disposal of land - July 2019Browne Jacobson LLP
Ongoing austerity requires authorities to “sweat their assets” and land holdings are a significant focus for the generation of revenue and capital. These slides cover commercial and public law considerations in relation to:
- Powers to acquire land
- Powers to invest through land acquisition including investment purchases
- Potential barriers to disposal
- Powers to appropriate land
- Planning permission
- Powers to dispose of land
- Pre-conditions relating to disposal of land
- A capital receipt or a revenue stream
- Development vehicles and options
- Who do you need to be able to satisfy as to the legality of land transactions
At this Public Sector Planning Club we reviewed:
- Recent developments in planning law, including cases and guidance
- Consideration of the use of planning conditions, including the appropriate use of pre-commencement conditions
- The powers available for stopping up and diverting highways, when these may be used, and points to consider
Browne Jacobson, Deloitte and DoctorLink are pleased to invite you to our first joint health tech seminar with leading industry thought leaders. This will be a practical session, sharing experience from across the NHS and beyond to inform options on how to improve services, break down silos and focus on population health outcomes.
This event is exclusively for Commissioners, GPs, and Policymakers keen to understand how new integrated care systems and models of care can meet the needs of their local population and can be implemented pragmatically and affordably to drive improvement goals and achieve better health, better care and better value.
Education Law Conference Manchester - Monday 10 June 2019Browne Jacobson LLP
Designed to inform, challenge and enliven your perspectives, our packed agenda was designed to provide innovative ideas and fresh perspectives. With a headline session on the management of transgender children needs within a school setting, we aim to provide you with the advice and guidance that the sector currently lacks.
Other topics included:
learning from child death inquests
good governance – so much more than compliance
managing difficult parents and their complaints.
Designed to inform, challenge and enliven your perspectives, our packed agenda was designed to provide innovative ideas and fresh perspectives. With a headline session on the management of transgender children needs within a school setting, we aim to provide you with the advice and guidance that the sector currently lacks.
Other topics included:
learning from child death inquests
good governance – so much more than compliance
managing difficult parents and their complaints.
The IICSA has a number of investigative streams, and one of its areas of focus is Accountability and Reparations. It has already recommended that the Government sets up a Payment Scheme for former Child Migrants, and the Government has acted upon it.
Is a redress scheme the way forward for abuse claims? How might it impact your organisation? We are helping more and more organisations explore the pros and cons of redress schemes so that they can decide whether a scheme is right for them and what the longer term impacts might be.
Our Birmingham Claims Club event will cover the following:
- Civil Liability Act 2018
- Freedom of Information Act requests - including 'Information Law, why is it relevant?'
- Brexit and local government
Our London Claims Club event will cover the following:
- Civil Liability Act 2018
- Freedom of Information Act requests - including 'Information Law, why is it relevant?'
- Brexit and local government
Our Admin and Public Law seminar, chaired by Sir Robert Devereux, former Permanent Secretary for the Department for Work and Pensions was held on Thursday 4 April, covering the following topics:
- 'wearing two hats' - managing the legal risks of conflicts of interest and allegations of pre-determination/bias
- information law update session - freedom of information (FOI) cases, General Data Protection Regulation (GDPR)
- case law update
- judicial review - tactics for dealing with judicial review and case law
In this webinar recording, Selina Hinchliffe, Alex Kynoch, Nick Smee and Helen Jones hold a panel discussion covering some of the key state aid concepts and how this impacts ownership and licensing of intellectual property, both from a commercial partner, public body and university perspective.
Whilst you’ve been distracted with Brexit and what that means for your business, you’ve probably missed some significant changes in the law. In our March forum we covered:
- contract changes (what they mean to your supply chain, customers and suppliers)
- data protection (the challenges of becoming a 'third country')
- legal privilege and internal investigations (practical tips following SFO V ENRC)
- employment law (changes to employment law you need to be aware of)
- banking - your banking covenants (what to be aware of - particularly in the event of a downturn ahead)
- property (end of lease issues for business owners).
For further training and resources visit our webpage - https://www.brownejacobson.com/sectors-and-services/sectors/in-house-legal
We are all waiting with bated breath for the Supreme Court decision in CN & GN, a case which will have a huge practical impact on service providers. Previously the Court of Appeal was dismayed about the damages claims, that had been litigated with little regard to, or understanding of, the law and reality of social care practice. Some of the team involved in the case discus what might happen next, and analyse the practical effect for you of the Supreme Court judgment.
Whilst that judgment has been awaited many claims have been on ice, but to fill that gap we are seeing many of our clients being affected by:
- pressure to consider Redress Schemes
- the Independent Inquiry into Child Sexual Abuse
- claims being brought directly against them as fostering agencies
- claims under the Human Rights Act
- issues following the implementation of GDPR.
For further information and training visit our webpage - https://www.brownejacobson.com/insurance
In this practical session we explored the legal duties of directors and the difficulties which they may face. The session focussed on individuals who are directors for public sector companies, including their role, obligations and competing interests which may arise.
At our February planning club we covered the following topics:
- planning performance agreements
- expert evidence in planning inquiries
- certificates of lawful use.
For further information and training visit our webpage - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
Mental health, capacity and deprivation of liberty case law update, February ...Browne Jacobson LLP
Rebecca Fitzpatrick looks at some of the most recent leading cases in relation to the Mental Health Act and Deprivation of Liberty, including the Supreme Court’s important decisions of 'MM' and 'PJ' which consider the interaction between the Mental Health Act and deprivation of liberty in the community. Rebecca also covered the subsequent case of 'AB' which focuses on the role of the High Court’s inherent jurisdiction in these types of cases, and the recent final report from the Mental Health Act independent review chaired by Professor Sir Simon Wessely.
We are all waiting with bated breath for the Supreme Court decision in CN & GN, a case which will have a huge practical impact on service providers. Previously the Court of Appeal was dismayed about the damages claims, that had been litigated with little regard to, or understanding of, the law and reality of social care practice. Some of the team involved in the case discus what might happen next, and analyse the practical effect for you of the Supreme Court judgment.
Whilst that judgment has been awaited many claims have been on ice, but to fill that gap we are seeing many of our clients being affected by:
- pressure to consider Redress Schemes
- the Independent Inquiry into Child Sexual Abuse
- claims being brought directly against them as fostering agencies
- claims under the Human Rights Act
- issues following the implementation of GDPR.
For further information and training visit our webpage - https://www.brownejacobson.com/insurance
Carl May-Smith looks at some of the most recent developments relating to the CQC and other areas of regulation affecting health & care providers, including in particular a prosecutions update outlining the first CQC criminal penalty for duty of candour failings, recent CQC guidance and upcoming changes, the latest Tribunal decision on CQC registration conditions and what the Court of Appeal decision in Ofsted v Durand means for challenging CQC inspection reports.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
RIGHTS OF VICTIM EDITED PRESENTATION(SAIF JAVED).pptxOmGod1
Victims of crime have a range of rights designed to ensure their protection, support, and participation in the justice system. These rights include the right to be treated with dignity and respect, the right to be informed about the progress of their case, and the right to be heard during legal proceedings. Victims are entitled to protection from intimidation and harm, access to support services such as counseling and medical care, and the right to restitution from the offender. Additionally, many jurisdictions provide victims with the right to participate in parole hearings and the right to privacy to protect their personal information from public disclosure. These rights aim to acknowledge the impact of crime on victims and to provide them with the necessary resources and involvement in the judicial process.
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All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
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Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
DNA Testing in Civil and Criminal Matters.pptxpatrons legal
Get insights into DNA testing and its application in civil and criminal matters. Find out how it contributes to fair and accurate legal proceedings. For more information: https://www.patronslegal.com/criminal-litigation.html
ASHWINI KUMAR UPADHYAY v/s Union of India.pptxshweeta209
transfer of the P.I.L filed by lawyer Ashwini Kumar Upadhyay in Delhi High Court to Supreme Court.
on the issue of UNIFORM MARRIAGE AGE of men and women.
1. Join the conversation @brownejacobsonJoin the conversation @brownejacobson
Privileged Communications:
What you need to know
2. Join the conversation @brownejacobsonJoin the conversation @brownejacobson
Connect with Mark Daniels
mark.daniels@brownejacobson.com
+44 (0)121 237 3993
Privileged
Communications:
What you need to
know
Connect with Helen Simm
helen.simm@brownejacobson.com
+44 (0)330 045 2652
3. Join the conversation @brownejacobsonJoin the conversation @brownejacobson
We’ll cover
• The importance of privilege
• The key types of privilege
• Internal investigations
• Key case; SFO v ENRC
• In-house settlement discussions
• Key case; WH Holding v E20
• Practical take-aways
• Questions
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• an absolute right to withhold
documents that could contain your
risk analysis, acknowledged case
weaknesses and tactics from
production to a third party or the
court
• Obligation to disclose adverse
documents
• Disclosure outside litigation – eg
subject access requests
The importance of
privilege
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The key types of privilege
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Legal advice privilege (narrower)
• Only between solicitor and client
• Can apply whether or not litigation
is reasonably in prospect or in
progress
Legal advice privilege
–v-
Litigation privilege
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Litigation privilege (wider)
• Litigation must be in progress or
reasonably in contemplation
• Can apply outside of the solicitor-
client relationship provided
document produced for the
dominant purpose of litigation
Legal advice privilege
–v-
Litigation privilege
(cont’d)
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• Internal investigations – often
necessary
• Risks of disclosure – internal
investigation can provide a route
map for external regulators
• Conflicting considerations;
accountability and transparency vs
proper desire to take confidential
legal advice
• Self reporting
Internal
investigations
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• ENRC – large mining company
• Email in December 2010 from
whistle-blower containing
allegations of fraud, bribery and
corruption
• Internal investigation:
• External lawyers interviewing
employees/third parties
• Accountants “books and
records review”
• Reports presented to board
SFO v ENRC – the
background
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• SFO investigation formally opened
in April 2013 and a disclosure of a
range of documents compelled
• ENRC withheld four categories of
documents on the basis of privilege
SFO v ENRC – the
background (cont’d)
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• Lawyers notes of meetings with
employees, former employees and
third parties etc.
• Material generated by forensic
accountants during their review
• Documents prepared by lawyers to
update senior personnel within
ENRC
• Documents referred to in an
external lawyer’s letter to the SFO
The four categories
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Privilege claimed
Category
Legal advice
privilege?
Litigation
privilege?
Judgment
Lawyers’ interview notes Yes Yes Not privileged
Accountants’ material Yes Not privileged
Reports and updates to the
board etc.
Yes Yes Legal advice privilege only
Reports/emails Yes Not privileged
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• Litigation privilege did not apply
as:
• Litigation was not in
reasonable contemplation
• Dominant purpose was not
established
• Distinction: conduction
litigation and avoiding
litigation
High Court judgment –
the rationale
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• Legal advice privilege attaches to
some documents prepared by
lawyers but only between lawyers
and authorised individuals within
the client entity
High Court judgment –
the rationale (cont’d)
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• Litigation privilege
• Purpose of heading off,
avoiding or settling reasonably
contemplated proceedings is
within scope of privilege
• Uncertainty doesn’t equate to
no contemplation
• Reasonable contemplation can
occur before regulator contact
• Fact specific
Court of Appeal – a
different view
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• Legal advice privilege
• No determination
• Three Rivers approach
criticised
Court of Appeal – a
different view
(cont’d)
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• WH Holding v E20 Stadium
• Scope of litigation privilege
• Dominant purpose
• Disentangling legal advice from
pure commercial discussions
• Will the court inspect the
relevant documents?
West Ham seats and
boardroom settlement
discussions
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Practical take-aways
• Think carefully before creating
unnecessary (and potentially non-
privileged) documents
• In house lawyers – clear distinction
between legal communications and
executive/business/administrative
communications
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Practical take-aways
(cont’d)
• Clear people strategy
• Minimum circulation list –
senior personnel
• Clarity re: client and type of
privilege
• Small investigation team
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Practical take-aways
(cont’d)
• Clear document strategy
• Preservation and organisation
• Labelling and identification
• Scope
• Media and communications
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Questions?
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Connect with Mark Daniels
mark.daniels@brownejacobson.com
+44 (0) 0121 237 3993
Privileged
Communications:
What you need to
know
Connect with Helen Simm
helen.simm@brownejacobson.com
+44 (0)330 045 2652
Editor's Notes
Internal investigations may need to be undertaken for a variety of reasons:
Whistle-blower allegations of fraud/bribery/misconduct
Suspicious transactions or communications within the business
Accident or environmental incident – to identify reasons and make improvements
Sometimes – may be mandatory requirement to investigate – either under regulations or under corporate governance rules
Obvious problem – documents created in the course of the investigation may later provide a route map for external regulators if investigation is carried out
Conflicting considerations: want to investigate fully and take legal advice before taking the next step; but real and proper concern that this may create difficulties at a later stage
ENRC large mining co operating in high risk bribery areas such as Kazakhstan and Africa. 2009/2010, making acquisitions of a number of organisations, one of which (Camrose) was alleged to have unlawfully acquired a mine. ENRC aware of these allegations but could not completely discount them.
Whistleblower email sent to ENRC – brought to the attention of the board, audit committee engaged lawyers (DLA, then Dechert) to investigate. Investigation also involved ENRC’s General Counsel.
Accountants instructed in April 2011 to undertake books and records review.
SFO became directly involved in August 2011, contacting the GC about an article in the Sunday Times that referenced allegations in whistleblower email. Reminded ENRC about the need to self report. A number of meetings held with ENRC during which the progress of the criminal investigation was discussed. SFO were aware of the scope of the investigation and ongoing interviews etc.
Criminal investigation formally opened by SFO in April 2013
SFO compelled production of a range of documents relevant to the investigation – s2(3) CJA 1987 - The Director may by notice in writing require the person under investigation or any other person to produce …any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate; and
ENRC refused to disclose four categories of documents on the basis that they were protected by privilege – s2(9) CJA 1987
SFO sought declaration from the High Court that disclosure of the documents could be compelled
Category 1 – third parties inc subsidiaries, suppliers
Category 4 included reports generated by the forensic accountants and emails/letters enclosing copies of those reports (including emails from a lawyer within ENRC)
Category 4 - 9 were the FRA reports (or appendices thereto) and and a further 6 of these documents are said to be e-mails or letters “enclosing copies of the FRA books and records reports – Lit P claimed as per category 2
Other 2 docs in cat 4 were emails between former GC of ENRC, then head of M and A, and a senior ENRC exec – as per cat 2
Prior to this case – would have been anticipated by most lawyers that privilege would apply to all the above documents, particularly in cats 1-3
Litigation privilege
Lawyers meeting notes
Accountants’ material
Accountants’ reports/emails enclosing those reports
Communication sole or dominant purpose is conducting that anticipated litigation
Litigation is adversarial
Legal advice privilege
Documents prepared by lawyers
Confidential communication
Lawyer and client
Purpose giving or seeking legal advice
Litigation was not in reasonable contemplation
ENRC did not establish that litigation was “a real likelihood rather than a mere possibility”
prosecution only a real prospect “once it is discovered that there is some truth in the accusations, or at the very least that there is some material to support the allegations of corrupt practices”
SFO investigation only the first stage of assessing whether further steps would be taken and therefore not “adversarial litigation” at that stage
“Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction.”
Dominant purpose not met
no evidence to show that the purpose of the internal investigation had anything to do with the conduct of future criminal proceedings
Distinction: conducting litigation and avoiding litigation
Avoiding litigation not sufficient Litigation privilege does not extend to third party documents created in order to obtain legal advice as to how best to avoid contemplated litigation or a future regulatory or criminal investigation
Legal advice privilege:
J quoted Three Rivers 5 – “the judgment of the Court of Appeal supports the proposition that where the party asserting privilege is a corporate entity, legal advice privilege attaches only to communications between the lawyer and those individuals who are authorised to obtain legal advice on that entity’s behalf”
Court unanimously disagreed with the conclusions of Mrs Justice Andrews. More pragmatic approach
9 issues for consideration - Re LP
1: Was the judge right to determine that, at no stage before all the Documents had been created, criminal legal proceedings against ENRC or its subsidiaries or their employees were reasonably in contemplation?
2: Was the judge right to determine that none of the Documents was brought into existence for the dominant purpose of resisting contemplated criminal proceedings against ENRC or its subsidiaries or their employees?
3: In the circumstances, which if any of the Category 1, 2 or 4 documents are protected by litigation privilege?
Found that proceedings WERE reasonably in contemplation:
Party anticipating possible prosecution will need to investigate before it can say that proceedings are likely, that uncertainty itself doesn’t mean that proceedings are not in reasonable contemplation
Whole background to the relationship between SFO and ENRC was the fact that prosecution likely if no civil settlement could be reached
Heading off:
Legal advice given to head off, avoid or settle legal proceedings is protected as much as advice on defending or contesting such proceedings
Even if document prepared with the intention of being disclosed to the other side, that doesn’t mean that the preparatory legal work loses the benefit of privilege
Declined to determine on legal advice privilege – no need to do so. However, non-binding view expressed on Three Rivers criticised – Js would have departed from the established position if had the choice (Three Rivers 5 decided that communications between an employee of a corporation and the corporation's lawyers could not attract legal advice privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client.
Large corporations at disadvantage if cannot seek advice under privilege as smaller ones.
Will there be a change soon?
As always, the issue will be whether the advice was given in their professional capacity as lawyers and "whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law“ (Three Rivers)