Guidance on key concepts of privilege from Court of Appeal

The judgment is in the case of Karam Salah Al Din Awni Al Sadeq v Dechert LLP and others, which concerns an individual, Mr Al Sadeq (the “Claimant”) who, until 2012, was a formal legal advisor and Deputy CEO for the Ras Al Khaimah Investment Authority ("RAKIA"), the sovereign wealth fund for the Emirate of Ras Al Khaimah ("RAK").

RAKIA alleges that in 2012, it discovered that its former Chairman and CEO had committed significant frauds against RAKIA and others and, together with associates, had misappropriated funds. The Claimant was arrested in Dubai, taken to and detained in RAK and was ultimately convicted of fraud and imprisoned. The Claimant maintains his innocence and claims that his convictions are wrongful and politically motivated.

The claim

The Claimant issued proceedings against a law firm based in London, together with former partners of the firm, who had been engaged to assist in investigating the activities of the former Chairman and CEO. The Claimant alleges serious wrongdoing by the Defendants during an investigation in relation to the above circumstances.

The Claimant made an application to the High Court, seeking to challenge the Defendants' position on privilege following disclosure in the proceedings. The application failed and the Claimant appealed.

The appeal

The key issues arising from the appeal decision in relation to privilege are as follows:

The iniquity exception

In short, the iniquity exception is the concept that no legal professional privilege exists in documents generated as part of or in furtherance of crime, fraud or other iniquity. In the present case, the Claimant particularised wrongs he says were committed against him in RAK, including: (i) unlawful abduction from Dubai to RAK and his unlawful detention there; (ii) unlawful prison conditions; and (iii) denial of access to legal representation (the “Three Iniquities”).

The COA identified three issues to be determined.

First, the COA considered whether, in order for the iniquity exception to be engaged, the Claimant had established the existence of the Three Iniquities to the required merits threshold and what, indeed, is that threshold? The COA noted that the parties appeared to agree that there had to be ‘a strong prima facie case’ but “had very different ideas of what that means in practice.” The Court concluded that (save in exceptional cases) the correct merits threshold for the iniquity exception is a balance of probabilities test:

“the existence of the iniquity must be more likely than not on the material available to the decision maker, whether that be the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arises; and that in an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not” [para 63].

This decision provides welcome clarity as to the test which should be applied when determining whether or not the iniquity exception is engaged. This should help avoid skirmishes between parties post-disclosure as to the correct threshold, resulting in all or parts of disclosure processes being repeated, and therefore avoiding unnecessary costs. By virtue of its proviso, “save in exceptional circumstances”, the COA left open the possibility that in certain circumstances, a court may need to undertake a balancing exercise of the competing interests of the parties (i.e. of disclosure vs non-disclosure). When these circumstances might arise were not identified, which leaves a slight uncertainty.

In the present case, the Claimant was found to have satisfied the threshold test in respect of the Three Iniquities.

Second, the COA asked, if the iniquity exception was engaged, what is the legal test for the relationship between the communication and the iniquity which must be established in order to bring the exception into play (and therefore mean that the documents are to be disclosed)?

The COA concluded that the appropriate formulation was that, “where there is a prima facie case of iniquity which engages the exception, there is no privilege in documents and communications brought into existence as part of or in furtherance of the iniquity. These are two categories, either of which is sufficient.” (emphasis added)

The inclusion of the words “part of” will capture documents which report on or reveal the conduct in issue. However, the Court noted that there must also be an abuse of the lawyer/client relationship such that, if a document detailing the iniquity had been provided to the lawyer for the purpose of seeking legal advice on the iniquity, the iniquity exception would not apply.

Third, the COA considered whether there are documents which the Defendants failed to disclose which they ought to have done, given the findings on the above issues. As a result of the conclusion on the first and second points, the COA rejected the approach taken in disclosure by the law firm as being too narrow and would have to be done again. It was not clear whether or not this would result in additional disclosure of documents.

Litigation privilege - third parties

One of the key issues arising in respect of litigation privilege in the appeal is whether such privilege can apply to parties who are not (and are not expected to be) parties to the proceedings in question, but who otherwise satisfy the test for litigation privilege. Specifically, former clients of the Defendant law firm which were not party to the proceedings, in relation to litigation privilege regarding criminal proceedings in RAK.

The COA found that, provided the dominant purpose requirement is met, “there seems no principled basis for limiting the scope of litigation to that which the person is a party”. The Court provided a number of examples to illustrate and justify this conclusion [para 195].

The Court rejected the reasoning in Minera Las Bambas SA v Glencore Queensland Ltd [2018] EWHC 286 (Comm) – a case which had indicated that litigation privilege would not extend to non-parties to the litigation. This is because privilege is wider than protecting against disclosure only to the opposing party in the litigation in question.

The COA left open the question of whether there also has to be a sufficient interest in the contemplated proceedings by the parties asserting privilege – any such requirement was satisfied in this case. The Court concluded that cases where a party was a “stranger to the litigation" would be rare, but this question should fall to be determined in the relevant circumstances.

Litigation privilege - application of Three Rivers (No 5) principle

In Three Rivers (No 5) [2003] EWCA Civ 474, the COA adopted a restrictive interpretation of a ‘client’ receiving legal advice in the test for the application of legal advice privilege. It was established that, in the case of a corporate entity, the client is not the entity itself, but a narrow group of individuals employed by that entity who are expressly tasked with obtaining that advice on its behalf.

The Claimant in the present case argued that this concept should also apply to litigation privilege.

The COA noted that this principle has received “considerable criticism” and has not been followed in other jurisdictions. It swiftly dismissed the Claimant's argument, noting that the concept does not apply to litigation privilege.

The Court also noted that, although the principle in the Three Rivers (No 5) case is binding on the COA, the parties in the present case had taken positions on it in the event that this issue was to proceed to the Supreme Court.

Legal advice privilege

Lastly, the Claimant argued that documents created for the dominant purpose of the Defendants' investigatory work should not be withheld from inspection on the grounds of legal advice privilege. It was argued that such work had involved no legal skills or analysis.

Due to the findings on the prior issues and the evidence in this case that no documents had been withheld on the basis of legal advice privilege alone in the original disclosure exercise, and few had been subsequently disclosed, the Court found this issue not to be of great significance.

However, the COA found that the Defendant law firm was “engaged in the investigatory process to bring their lawyers' skills to that process and to conduct it through lawyers' eyes” and even if it had been undertaking tasks that a public prosecutor might have done (as alleged by the Claimant), that would involve “acting in a legal context against the background of being instructed to provide legal advice in relation to suspected fraud”. Therefore, the work undertaken (even if work might also have been undertaken by a non-lawyer) fell within the legal context of the instruction of a global law firm. Subject to further evidence, the Court concluded on the facts that there is nothing to infer that legal advice privilege had been wrongly claimed in respect of documents relating to the Defendants' investigative activities.

Delay

It is worth noting that the COA concluded its findings by noting the delay of 15 months for delivery of the High Court judgment. It stated that the COA has “repeatedly emphasised the importance of judgments, even in complex matters, being delivered within three months, and the adverse impact of delay not just on the parties but also on public confidence in the justice system”. It was noted that delay was not a reason to allow an appeal, but if there has been a lengthy delay, an appellate court must take “special care” in reviewing the judge's finding of facts and reasoning.

Conclusion

The Claimant was unsuccessful on its appeal on all points, save for the iniquity exception issue, which has resulted in the disclosure exercise having to be revisited. In making its findings, the COA has provided welcome clarity on some important privilege points:

(i) the test for the engagement of the iniquity exception;

(ii) that litigation privilege is not limited to parties to the litigation;

(iii) that the restrictive interpretation of ‘client’ taken in Three Rivers (No 5) in respect of legal advice privilege would not be extended to litigation privilege; and

(iv) that legal advice privilege will apply to investigations by law firms (also involving non-lawyers), provided they bring their “lawyers' skills” to that process and “conduct it through lawyers' eyes”.

For a discussion on privilege issues, including our interactive and informative privilege training offering to legal and business teams, please contact Neil Parkes.