ISSUE 54 EWJ web - Journal - Page 34
Legal Professional Privilege
in the Spotlight
In its recent Al Sadeq judgment*, the Court of Appeal clarified the threshold test for applying
the iniquity exception to privilege; confirmed that litigation privilege can arise in favour of
non-parties to litigation; and clarified how legal advice privilege can apply in investigations. It
also rejected the Claimant’s attempt to apply the Three Rivers (No.5) determination of who the
“client” is to litigation privilege (as opposed to legal advice privilege). *[2024] EWCA Civ 28
prima facie case of three categories of iniquitous
conduct: unlawful detention, detention in conditions
amounting to torture and inhuman or degrading
treatment, and denial of access to legal representation.
Background
The Claimant, Mr Al Sadeq, had been a senior adviser
and executive for the Ras Al Khaimah Investment Authority, the sovereign wealth fund of the Emirate of
Ras-Al-Khaimah, UAE (“RAK”). In 2014, the
Claimant was accused of fraud, arrested, and taken
from his home in Dubai to RAK. After a lengthy detention, he was convicted of fraud in the RAK local
courts. The defendant law firm acted for various RAK
government entities that had conducted the investigation into transactions and investment activity that
led to the Claimant’s conviction. The Claimant subsequently brought English law proceedings against the
law firm and three of its former partners alleging that
they had been complicit in serious wrongdoings, such
as the Claimant’s unlawful arrest, detainment in
inhuman conditions and denial of access to legal
representation.
In reaching this conclusion, the Court of Appeal
clarified the test for the iniquity exception as follows:
“The merits threshold for the existence of an iniquity which
prevents legal professional privilege arising, whether legal advice privilege or litigation privilege, is a prima facie case,
which means that on an assessment of the material available
to the decision maker, whether that be the party or its legal adviser conducting disclosure, or the court, it appears more likely
than not on a balance of probabilities that such iniquity exists… This is subject to the proviso that there might exist exceptional circumstances which could justify a court taking the
view that a balance of harm analysis has a part to play.”
Further, the Court held that the High Court had interpreted the scope of the exception too narrowly. It
held that the exception would apply where a document was created as “part of ” or in furtherance of an
iniquity. It clarified that “part of ” includes documents
which report on or reveal the iniquitous conduct, including documents brought into existence after the
iniquity itself came to an end, on the rationale that the
exception must be wide enough for the full details of
the iniquity to be revealed. Unhelpfully the Court did
not more precisely delineate the category of documents which report on or reveal an iniquity; we suggest it would be logical if this were to be confined to
the documents which between them are the first to
identify each detail of the relevant matters (rather than
subsequent repetition or references back to these primary sources) but the judgment provides no specific
assistance on this point. However, the Court emphasised that for the exception to be engaged at all, there
must be an abuse of the lawyer/client relationship,
such that the conduct would not fall within "the ordinary
run of cases".
The appeal arose from a decision of the High Court
in relation to challenges made by the Claimant to the
Defendants’ assertion of legal professional privilege
over various categories of documents. The Claimant
relied on the so-called iniquity exception in challenging privilege claimed over some of these documents.
The Claimant also made challenges to the basis for litigation privilege or legal advice privilege in relation to
other documents, disputing the privilege on grounds
that varied between the document categories in question. The High Court found that the iniquity exception did not apply and that the various documents
sought from the Defendant law firm were subject to
legal professional privilege. The Court of Appeal allowed the Claimant’s appeal in respect of the test to
apply the iniquity principle but rejected its other
arguments on privilege.
The Decision
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The iniquity exception
Litigation privilege for non-parties
The “client” in litigation privilege
Legal advice privilege in investigations
Clyde & Co commentary
Consequently, the Court ordered the Defendants to
conduct a re-review of their standard disclosure to determine whether any such documents had been improperly withheld, using the correct threshold test.
The iniquity exception
This exception concerns the circumstances in which
crime or fraud will prevent privilege arising. The
Court found that the Claimant had established a
EXPERT WITNESS JOURNAL
Litigation privilege for non-parties
One of the Claimant’s challenges to privilege related
to documents concerning five pieces of litigation in
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APRIL 2024