A recent decision of the
More and more, regulators here and in the
The recent decision of the
Privilege
Communications which are privileged - whether because of legal advice privilege or litigation privilege - do not have to be disclosed in the course of legal or regulatory action. (Read our previous article which discusses privilege as a fundamental right here).
Privilege may be waived and, in practice, decisions are sometimes made to hand over privileged documents to a regulator, though decisions of this nature should only be made after seeking legal advice.
Apart from a decision to waive privilege, the recognised exceptions to privilege are very limited.
Statutory confirmation of privilege
While the right to claim privilege exists regardless of whether it is provided for by statute, many statutes confirm the right.
Legislation giving power to regulators to carry out investigations will often include a provision confirming that the person or body under investigation is entitled to refuse to hand over privileged documents. For example, the Companies Act 2014 restricts the Director of Corporate Enforcement from requiring a person or body to hand over documents where that person would be entitled to refuse to produce the documents in legal proceedings on the basis of privilege. Similarly, the Data Protection Act 2018 states that a controller or processor under investigation does not have to furnish the
What happened in
Controversially, the
The Court made this ruling notwithstanding a provision in the relevant
It has been reported that the FRC is considering appealing to the
Comfort to companies
Companies facing regulatory investigation may take some comfort from this decision. Though the decision is fact-specific and based on the wording of the relevant
As always where privilege is concerned, the best approach is to proceed with caution and to seek legal advice as soon as you receive notification from a regulator of an investigation or a request from a regulator for information.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
Ms Joanelle O'Cleirigh
Ten
D02 T380
Tel: 1920 1000
Fax: 1920 1020
E-mail: mail@arthurcox.com
URL: www.arthurcox.ie
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