The background – legal professional privilege and the “iniquity exception”

There are two broad categories of legal professional privilege: legal advice privilege and litigation privilege. Legal advice privilege covers communications between a client and its lawyers, whether or not connected with litigation/adversarial proceedings, which are confidential and made for the dominant purpose of giving or receiving legal advice. Communications between an organisation's lawyers and third parties (including its "non-client" employees) will not attract legal advice privilege, so the identity of the client is important in this context.

Litigation privilege protects communications between a client and its lawyers or between either of them and a third party where the confidential communication was made for the dominant purpose of conducting litigation or other adversarial proceedings which are on foot or reasonably in prospect.

Legal professional privilege (whether legal advice privilege or litigation privilege) will not arise where, in high level summary, the communication was made as part of or in furtherance of a crime, fraud or other relevant misconduct. This is known as the “iniquity exception”, and in those circumstances no privilege in the relevant communication arises. 

Brief context

The claimant had worked for the sovereign wealth fund (the Ras Al Khaimah Investment Authority, "RAKIA") of the Emirate of Ras Al Khaimah ("RAK"). He was subsequently arrested in Dubai and taken to RAK where he was convicted of fraud and had been detained ever since, although he continues to assert his innocence.

The defendant law firm was engaged on behalf of RAKIA, and later by a related entity, to investigate suspected fraud on the part of the former CEO of RAKIA and others.

In the litigation, the claimant alleges that the defendants (the law firm and three of its former partners) were complicit in his ill-treatment, the purpose of which was alleged to be to force him to give evidence against the former CEO, and the claimant seeks compensation for the harm, loss and damage thereby caused to him. The alleged iniquities related to his detention and transfer to RAK, the conditions of his detention, and his lack of access to legal representation.  

The issues

Following disclosure being given by the defendants, the claimant appealed various decisions by the lower court relating to claims to privilege by the defendants. The appeals gave rise to various important questions including:

• Whether one has to be a party to the relevant proceedings to claim litigation privilege;
• Whether the investigative work done by the defendant law firm was sufficient to attract legal advice privilege, in circumstances where the claimant alleged that aspects of that work involved no legal skills or analysis and was of a type ordinarily carried out by parties such as the police;
• Whether the defendant firm had applied the correct test when concluding that the iniquity exception did not apply.

The judgment

The Court of Appeal confirmed that litigation privilege can be claimed by victims who are not parties to the relevant proceedings. Provided the relevant tests for litigation privilege are fulfilled including the "dominant purpose" test, there was no principled basis for limiting the availability of the privilege to those who are actually parties to the litigation. While it may be comparatively rare for litigation privilege to arise in the hands of non-parties, the court identified various situations in which that could be the case and where to deny the privilege would be unjust – such as where a victim of a crime communicates for the dominant purpose of criminal proceedings in which they hope to make some form of compensation claim, or where a party's insurer is involved in evidence gathering for litigation even though the insurer is not itself a party to the claim.

The Court of Appeal did not consider it necessary to decide whether there was an additional requirement for the non-party to have a "sufficient interest" in the relevant proceedings, over and above satisfying the usual tests, because if that was a requirement, it was satisfied in this case and would arise extremely rarely. In addition, in considering questions of litigation privilege the court concluded that the restrictive definition of the “client” that applies in the context of legal advice privilege (meaning that only communications with employees and representatives specifically authorised to seek and receive the advice will attract privilege) did not apply to litigation privilege.

The Court of Appeal also rejected the claimant's argument that legal advice privilege did not apply to much of the defendant firm's work because it was purely investigative and involved no legal skill. The defendant law firm was appointed as a law firm for its legal expertise, and was engaged in the investigatory process to bring lawyers' skills to that process and to conduct it through lawyers' eyes. The defendant firm had not wrongly claimed legal advice privilege in relation to its investigative activities.

On the question of the correct approach to the iniquity exception, the court considered that the available material established a "prima facie" case of various iniquities (the claimant's detention and rendition to RAK, the conditions of his detention and his lack of access to legal representation). Importantly, the court found that in the context of the iniquity exception, a "prima facie case" meant that a balance of probabilities test should be applied: the existence of the iniquity must be more likely than not on the material available to the decision maker (whether that be the person carrying out the disclosure exercise and applying the privilege principles, or the court in any subsequent challenge). The court rejected the suggestion of a lower threshold test, such as only having to be satisfied that there was a "good arguable case" or "a serious issue to be tried" in terms of whether the alleged iniquity in fact existed.

Where the exception was engaged, there was no privilege (whether legal advice or litigation privilege) in communications brought into existence as part of, or in furtherance of, the iniquity. This included documents reporting on or revealing the iniquitous conduct. The court's conclusion, rejecting the narrower approach taken by the defendants, meant that the disclosure exercise would need to be undertaken again.

Commentary

The Court of Appeal has provided welcome clarification of important aspects of the law of legal professional privilege, subject to any appeal of the decision.

Among other points of interest, corporates dealing with an investigation under English law have reassurance that communications with lawyers instructed in relation to the investigation are likely to be protected by legal advice privilege, provided that the law firm is appointed for its legal expertise and is bringing lawyers' skills to the process and conducting it through lawyers' eyes.

Entities who are non-parties to litigation, such as those involved in a joint venture, witnesses, liability insurers or litigation funders, should also be alert to the question of whether litigation privilege may be available to them in appropriate circumstances, even though they are not parties to the relevant litigation, where they engage in confidential communications which meet the "dominant purpose" test.

For guidance on protecting privilege in your communications, please see our Privilege overview client note, which has ten rules for retaining privilege.

Authored by John Tillman, Emma Childs, and Alice McCarthy.