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  • In a climate where Australian regulators have encouraged greater access to the output of internal investigations, and complain about what they consider to be excessive claims of legal professional privilege, the English High Court decision in RBS Rights Issue litigation may spur Australian regulators to more aggressively challenge claims of privilege over lawyer work product made by entities they are investigating.
  • Australian courts have taken differing approaches about whether lawyers’ notes of interviews of witnesses are protected by privilege, depending on the particular circumstances involved.

In the long-running RBS Rights Issue litigation [2016] EWHC 3161 (Ch) (‘RBS’) the English High Court has recently ruled that notes of interviews of bank employees, prepared by the bank’s in-house lawyers who conducted the interviews as part of an internal investigation, were not privileged from production.

Although the decision does not change the law in Australia (which, broadly speaking, protects communications made for the dominant purpose of giving or obtaining legal advice or for providing services in relation to actual or anticipated litigation), it may still encourage increased challenges by regulators and others t o claims of privilege over lawyer work product created in the course of undertaking internal investigations.

This article summarises the RBS decision and the current legal position in Australia, and offers some practical tips for preserving privilege in the context of Australian internal investigations.

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