Court of Appeal rules on various privilege issues

In Al Sadeq v Dechert (2023), broadly, the claimant is suing a law firm hired by a third party that, he alleges, committed serious wrongdoing in the course of an investigation and led to him being (among other things) unlawfully detained in the Middle East. His challenges to the defendants' assertion of privilege over some of its documents failed at first instance, but his appeal has now been allowed, in part.

Iniquity exception

The Court of Appeal held that the iniquity exception, which prevents a party claiming legal professional privilege, does not only apply where a document is created in furtherance of (or is part of) a fraud or wrongdoing. It can apply to any document which reports on or reveals the fraud or wrongdoing. However, it is also still necessary to show that there has been an abuse of the lawyer or client relationship for the iniquity exception to apply.

For example, if solicitors learn of an iniquity perpetrated by their client in the course of their retainer, no privilege can be claimed (as the document in question reveals the iniquity). But if the client seeks legal advice from its solicitor as to whether a wrongful action committed by the client is lawful or not, that would be privileged (even though it also reveals an iniquity – on the basis that this falls within the "ordinary run of cases" and is not an abuse of the client-lawyer relationship).

Litigation privilege

The Court of Appeal held that litigation privilege can attach in relation to proceedings to which the privilege holder is not a party. As the Court of Appeal put it, litigation privilege is not "limited to protection from disclosure to the opponent in the adversarial litigation, at least where a lawyer is involved". It was not necessary for the Court of Appeal to decide whether the non-party has to have a sufficient interest in the contemplated proceedings, as that test was met here.

How much detail?

There has been conflicting High Court case law on how much detail should be given when claiming privilege. Here, the Court of Appeal adopted a fairly lax approach, accepting that it was not possible to give more detail about the claim to litigation privilege "without disclosing the very matters which the privilege is designed to protect".

Legal advice privilege

The Court of Appeal also confirmed that the rule about who is the client for legal advice privilege does not apply to litigation privilege.

The Court of Appeal rejected an argument that the solicitors had not been acting as lawyers when they worked on the investigation. As a result, legal advice privilege could be claimed here. While it was accepted that documents created "as part of a purely investigative role, divorced from [the solicitors'] role as lawyers, would not be privileged", that was not the case here. The lawyers had used their legal skills to conduct work such as "taking statements", "assembling the facts and handling the evidence". The solicitors were not stepping into the shoes of the prosecutors or acting as "quasi-public prosecutors".