International

Bilta & Ors v RBS & Anor : Privilege Update post ENRC

By Alan Sheeley and Stuart Walsh The law regarding the privileged status of investigations has been in flux since Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd EWHC 3535 (Ch) ("Bilta"), in which Pinsent Masons acted on behalf of RBS, is therefore an important decision as it confirms that ENRC is not a determinative statement of principle as privilege can apply to investigations on the right set of facts. Imagine that you are a decision maker in a large corporate organisation and that you have just received a letter from a third party alleging that your organisation has done something seriously wrong. Quite naturally, your first instinct might be to set about investigating matters. However, what would you do if the third party could look over your shoulder and see all of the documents you created during this investigation? This was the sort of scenario that many thought would ...

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Sectors

Significant jail term in Edinburgh construction works bribery case

By Tom Stocker, Partner, Corporate Crime & Investigations, Pinsent Masons LLP Yesterday, two former employees of Edinburgh Council and two directors of a construction company received significant jail sentences for bribery contrary to The Public Bodies Corrupt Practices Act 1889 (the legislation that pre-dates the Bribery Act 2010). The council employees helped award contracts to Edinburgh Action Building Contracts Ltd (ABC Ltd) and in return they received extensive hospitality including corporate seats at Hibs and Hearts football grounds, meals out and visits to lap dancing bars as well as cash.  Invoices were then inflated to cover the cost of the hospitality. The charges related to the maintenance of council buildings from 2006 to 2010. Council worker Charles Owenson was sentenced to 4 years and 4 months for accepting bribes. The sentencing Sheriff considered that, despite Mr Owenson's guilty plea, the plea-in-mitigation put forward on his behalf  demonstrated that Mr Owenson had not accepted ...

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News & what’s on

Opinion: The old rules still apply & always did. High Court rules litigation privilege applies in internal investigation post ENRC

In a new case, just published on Thursday last week, the Court (Bilta (UK) Ltd v Royal Bank Of Scotland Plc & Anor EWHC 3535 (Ch)) has confirmed that litigation privilege applies in the context of an internal investigation for a company engaging with a regulator. This should not be a controversial statement. But. A judgment involving ENRC caused a furore last year when the High Court, on the facts of that case, held that litigation privilege was not available, notwithstanding that the company was under criminal investigation. We have always thought that, as a general proposition, a company under criminal investigation must have the opportunity to avail itself of litigation privilege.  It is obvious that those subject to criminal investigation are at risk of criminal prosecution/litigation as a result. Some commentators argued that, following ENRC, the mere claiming of litigation privilege when subject to investigation could amount to an admission on the part of ...

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Bribery Act & Proceeds of Crime

Opinion: As Rolls resolution confirms DPA’s on the menu without Self Report we argue (again) for bigger discounts for companies who Self Report.

Rolls Royce DPA with the SFO is the right result. Rolls can draw a line under the matter and move on.  The SFO can be applauded for what is a very significant enforcement resolution in its favour. The SFO Press Release records serious misconduct, namely,  "...12 counts of conspiracy to corrupt, false accounting and failure to prevent bribery.... three decades and involves Rolls-Royce’s Civil Aerospace and Defence Aerospace businesses and its former Energy business and relates to the sale of aero engines, energy systems and related services. The conduct covered by the UK DPA took place across seven jurisdictions: Indonesia, Thailand, India, Russia, Nigeria, China and Malaysia." In his judgment Sir Brian Leveson recorded: "My reaction when first considering these papers was that if Rolls-Royce were not to be prosecuted in the context of such egregious criminality over decades, involving countries around the world, making truly vast corrupt payments and, consequentially, even greater profits, ...

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Your Questions: Answered

My company has entered into contracts with FIFA. Should I be doing anything?

Question My company has entered into various contracts over the years with FIFA.  I read with alarm last week the news stories about the arrests of FIFA officials in Switzerland. The US has signalled more arrests are likely and the Swiss prosecutor is also investigating. Should I be worried that my business may be drawn into the FIFA investigation and should I be doing anything now? Yours, Anon. The short answer Expect more revelations.  So far the enforcement action in the public domain focusses on the alleged bribe recipients – expect the suspected bribe payers to be targeted next and under the full glare of publicity. A head in the sand approach is never the best option. Businesses who have negotiated licencing deals etc. with FIFA would be well advised to run some basic checks (speak to a lawyer before you do to make sure the checks don’t create legal problems) to confirm their deals are not tainted. The longer ...

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