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Evidence sought by criminal investigators regarding dealings by ENRC, the mining giant that crashed out of the FTSE amid allegations of corruption, can be handed over as part of a long running criminal probe, a London court has ruled.
In a landmark ruling, a High Court judge in London ordered that a substantial quantity of four categories of contested documents can be handed over to the UK’s Serious Fraud Office, which has been investigating ENRC since 2013 over its activities in Kazakhstan and Africa. ENRC denies it has committed any criminal offence warranting the probe and so far, no one has been charged or prosecuted.
On Monday Mrs Justice Andrews ruled broadly in favour of the SFO, which launched a civil case against ENRC in an effort to access material that the company claimed was covered by legal professional privilege; that is, legal advice privilege or litigation privilege, or both. Litigation privilege is a type of legal protection that keeps confidential any communication between a client and lawyer if litigation or adversarial proceedings have commenced or are anticipated. ENRC also argued documents were covered by legal advice privilege, which protects advice given by lawyers to their clients.
The judge ruled that the bulk of the documents in issue were not covered by legal privilege, meaning they could be obtained by the SFO. However, the ruling also stipulated that one of the four categories of documents in question is covered by privilege.
Further details of the judgment cannot be reported immediately, for legal reasons.
The company hopes to appeal the decision about legal privilege, although the court refused ENRC permission to challenge its ruling at the Court of Appeal.
The ruling is a boon to the SFO as it tries to clarify its position regarding its investigatory powers.
The SFO officially launched its criminal probe into ENRC in 2013. Investigators are examining ENRC’s acquisition of mines and prospects in the Democratic Republic of Congo, home to some of the world’s richest stocks of copper and cobalt. The SFO has received special government funding to pursue the investigation.
The court battle was the latest legal skirmish by the company in the wake of the SFO’s criminal probe. Other lawsuits include a fight over legal fees launched against Dechert, the law firm that ENRC instructed to investigate whistleblower claims.
Listed ENRC no longer exists after being taken private by its founding trio and the Kazakh government in 2013; in its place is the renamed Eurasian Resources Group. The founding trio own 60 per cent of ERG, and the newly restructured group says it has zero tolerance for corruption.