LexisPSL Environment News Podcast – September 2018

Landmark Court of Appeal case on litigation in SFO v Eurasian National Resources Corporate, priority of environmental obligations in insolvency in Re Doonin Plant Hire Ltd (in liquidation), of the single-use plastic bag charge in England

Welcome to our environmental law news podcast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.

In this podcast, we consider some of the key legal developments in environmental law during September 2018, including:

• A landmark Court of Appeal case on litigation in SFO v Eurasian National Resources Corporate, which will be of interest to anyone dealing with cases of regulatory non-compliance
• Priority of environmental obligations in insolvency in the Scottish case of Re Doonin Plant Hire Ltd (in liquidation)
• Extension of the single-use plastic bag charge in England

To listen to the podcast, press below or to download and perhaps listen on the go, click here.

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Landmark Court of Appeal case on litigation in SFO v Eurasian National Resources Corporate – listen from 0.35 seconds

On 5 September, the Court of Appeal in Serious Fraud Office or SFO v Eurasian National Resources Corporation Ltd, overturned an earlier High Court decision, holding that documents produced during an internal investigation are protected by litigation privilege.

Christopher takes us through the judgment, explaining why the Court of Appeal overturned the High Court decision and makes clear that lawyers advising corporate entities in situations of regulatory non-compliance should identify if adversarial proceedings with the regulator are reasonably contemplated, so that they can assess the grounds on which investigations can be conducted, without the fear that the regulator will later be able to demand the lawyers’ entire investigatory work.

Priority of environmental obligations in insolvency – listen from 4.54 mins

In Re Doonin Plant Hire Ltd (in liquidation), the Scottish Outer House of the Court of Session (Lord Doherty) had to consider where liabilities under s.59 of the Environmental Protection Act 1990 ranked in priority on the liquidation of an occupier of land upon which waste had been unlawfully deposited. This is the first consideration of that question in either Scotland or England.

Christopher considers key aspects of the judgment and discusses the implications if the reasoning is not adopted in a similar case in England. For example, the likely practical consequences would see a waste site, blighted by of its owner, significantly more likely to be cleaned up if it were situated in Scotland, than England.

Extension of the single-use plastic bag charge in England - 8.49 mins

Christopher explains how the extension to the single-use plastic bag charge England will work, how it compares to measures already in place in Wales and Scotland and what this means for government meeting its environmental obligations under the 25 Year Environment Plan.

For related documents, see:

• LexisPSL Corporate Crime analysis: Privilege in internal investigations restored (SFO v ENRC)
• The Director of the Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006, [2018] All ER (D) 05 (Sep)
• Re Doonin Plant Hire (in liquidation)
• Plastic bag charge set to be rolled out to all retailers
• environment plan unveiled