Eurasion Natural Resources Corporation Limited v The Director of the Serious Fraud Office

The court upheld public interest immunity redactions where disclosure created a real risk of substantial harm and the public interest in withholding inspection outweighed the relevance and probative value of each redacted passage. The assessment must be made by reference to the particular information, not the importance of the document as a whole.

Inspection of documents claimed to be privileged is a broad but cautious discretion. It is not normally necessary where the court lacks the surrounding context and there is no sound basis to doubt the lawyers’ assessment. For irrelevant and confidential redactions, relevance extends to any issue in the proceedings, not merely the approved Issues for Disclosure. A party may not use confidentiality to redact material that is relevant to communications or meetings in issue.

The claimant challenged redactions to a confidential report prepared following an internal investigation by the Serious Fraud Office. The challenges concerned public interest immunity, litigation privilege, and information said to be irrelevant and confidential. The claimant also sought production of an unredacted document and consequential relief concerning privilege and confidentiality.

The court considered whether the PII redactions satisfied the three-stage test in Wiley, whether it should inspect privileged material, whether further explanations were required, and whether the SFO had applied an excessively narrow approach to relevance. It also considered whether privilege had been waived or confidentiality lost through references to a document in open court or reliance in pleadings.

1. Public interest immunity. The court applied the three-stage test in Wiley: relevance and materiality; a real risk of substantial harm to a public interest; and whether that public interest outweighed the public interest in the fair administration of justice. The balance was required for each redaction, having regard to its relevance, materiality and probative value. The court rejected an approach based on the importance of the Byrne Report as a whole. The PII redactions were upheld.
2. The court accepted that protecting confidential sources advances the public interest in preventing and detecting crime, whether or not the particular investigation remains ongoing. The proposed safeguards would not appropriately protect the information.
3. Inspection of privileged documents. The court’s power to inspect documents is a broad discretion, but inspection remains subject to necessity and must be exercised cautiously. Relevant factors include the nature of the privilege, the number of documents and their potential relevance. The challenges required wider factual context that could not safely be obtained from the redacted report alone. Inspection was therefore refused.
4. Explanation of privilege claims. The SFO had provided the explanation required by Practice Direction 57AD. A further explanation identifying the relevance of the privileged communications to the report’s reasoning would risk revealing their substance and went beyond what was required. No further order was made.
5. Relevance and confidentiality. Relevance under paragraph 16.1 of Practice Direction 57AD is relevance to any issue in the proceedings. It is not confined to the Issues for Disclosure, nor does it involve a separate test of necessity, proportionality or additional probative value. The issues included communications and meetings with journalists or intermediaries, their circumstances and what was discussed, even where the material did not concern the ENRC investigation. The SFO was directed to conduct a further review of the relevant redactions in light of the judgment.
6. Confidentiality and waiver. References in open court do not invariably destroy confidentiality. The court may preserve confidentiality where there is good reason. There was no implied waiver, and confidentiality in the document was preserved. Privilege was not lost merely because a communication contained facts already known to the opposing party. The first sentence of the relevant pleading did not put the document’s content in issue, but the second sentence did. The SFO was required to elect whether to amend its pleading within a period specified in the consequential order.