Complex issues regarding the validity of a party's claim to privilege are very common in commercial disputes and frequently make fertile ground for conflict. The recent judgment in Al Sadeq v Dechert & Ors  EWHC 795 (KB), in which the High Court dismissed a claimant's challenges to the defendant law firm's assertions of privilege over various categories of documents, provides helpful clarification on several key points relating to legal professional privilege. However, questions remain over the availability of litigation privilege to non-parties to proceedings.
The claimant, Mr Al Sadeq, was a former employee of the Ras Al Khaimah Investment Authority (RAKIA) in the Emirate of Ras Al Khaimah (RAK), United Arab Emirates. He contended that after resigning from his position in late 2012, he was unlawfully arrested in Dubai by men acting on behalf of the ruler of RAK, and taken, without proper legal process, to RAK, where he was convicted of fraud and sentenced to imprisonment. The claimant maintains that he is innocent of any wrongdoing and that he was wrongfully convicted in a politically motivated trial.
The defendant firm of solicitors had been engaged by the Investment and Development Office of the Government of RAK in the fraud investigation which led to the claimant’s arrest and conviction. The claimant contended that the defendants committed serious wrongs against him in the course of their work on the investigation and brought proceedings against them in England under UAE law.
In the course of proceedings, the defendants withheld inspection of certain documents on the grounds that they were protected by legal professional privilege. The claimant challenged those assertions and applied for an order that the defendants carry out a re-review.
Legal advice privilege
Legal advice privilege covers confidential communications passing between the lawyer and client for the dominant purpose of giving or receiving legal advice. However, the claimant questioned the extent to which documents and communications generated in the course of the defendant's investigations could be properly seen as having been created for the dominant purpose of giving or receiving legal advice, noting that some of the documents were created for the dominant purpose of conveying factual information to their client or the RAK public prosecutor, rather than providing legal advice. The claimant contended that there was no prospect of legal advice being given as regards at least some of the investigatory work, since the matters being investigated did not raise any issues of English law (only the claimant's potential criminal liability under UAE law).
However, noting that "legal advice" extends to advice "as to what should prudently and sensibly be done in the relevant legal context", the judge was not persuaded by the claimant's attempts to rely on an "unrealistic and artificial distinction" between "investigatory work" on the one hand and legal advice and assistance, on the other. He commented that where lawyers are engaged to conduct an investigation, it is a reasonable and fair assumption that the engagement encompasses the investigatory work and related legal advice and assistance as part of a continuum of legal service. It would take strong evidence to rebut this.
Litigation privilege, meanwhile, covers confidential communications passing between the lawyer and client, or either of them and a third party, for the dominant purpose of litigation which is actual, contemplated or pending. In Minera Las Bambas SA v Glencore Queensland Limited  EWHC 286 (Comm) it was held that "litigation privilege can only arise in favour of a person who is a party to the litigation", and so in Al Sadeq the claimant argued that the defendants' clients were not entitled to claim litigation privilege in respect of criminal proceedings to which they were not a party (being victims of the alleged criminal activity, rather than parties to the proceedings).
However, in the judge's view, having regard to the underlying purpose of litigation privilege, there was no reason as a matter of principle or policy to limit its availability to a prospective or actual party. Although he accepted that a non-party will rarely have sufficient interest in litigation to seek legal advice in relation to it, a victim of fraud was a good example of a person likely to do so. If a non-party had sufficient interest in prospective or actual litigation such that they had sought legal advice and, in connection with that legal advice, communicated with third parties (directly or through their lawyer) and obtained documents to ensure that the legal advice is properly founded, litigation privilege would be available. In reaching this decision, the judge potentially opened the reach of litigation privilege, although it remains to be seen whether other courts will prefer his analysis or that in Minera, and how broadly the "sufficient interest" test may be applied.
The iniquity exception
Pursuant to the "iniquity exception", legal professional privilege (whether legal advice privilege or litigation privilege) cannot be claimed for communications which came into being for the purpose of furthering a crime, fraud or other equivalent underhand conduct. In assessing whether the exception applies, it is important to distinguish between communications made "for the purpose of effecting iniquity" and communications which merely evidence or disclose iniquity (which will remain privileged).
In Al Sadeq, the claimant argued that the approach taken by the defendant's review team to the iniquity exception was too narrow and that it should have involved an assessment of whether the document was "generated by or reported on" the relevant iniquitous conduct. However, the judge did not agree, commenting that the claimant's interpretation of the test would lead to too broad an application of the iniquity exception which, the authorities make clear, is only to be applied in exceptional circumstances. The test remained whether the documents were produced in furtherance of the iniquity, and in this case they were not.
Finally, the claimant argued that the defendants' approach to redactions was flawed, including on the basis that they were not entitled to redact parts of documents unless they represented separate or severable communications from the unredacted parts. The claimant asserted that, to the extent part of a document is not "properly severable" from the unredacted parts, the dominant purpose test must be applied to the document as a whole. If it was not satisfied, the document should be disclosed in its entirety.
The judge noted that he had not been able to discover any authority for the proposition that part of a document can be redacted on grounds of privilege only if it is severable from the unredacted parts. He additionally stated that legal textbooks and authorities suggest that, to the extent privileged and non-privileged information are so intertwined that redacting the privileged parts of a document is not feasible, then the balance falls in favour of withholding the entire document on the grounds of privilege.
- Where lawyers are engaged to conduct investigations, it is fair to assume the engagement encompasses both the investigatory work and any related legal advice and assistance as part of a continuum of legal service for the purposes of legal advice privilege.
- Although it is likely to be uncommon, in certain circumstances it may be possible for litigation privilege to be asserted by non-parties to litigation if they have a "sufficient interest" in that litigation.
- The iniquity exception only applies in exceptional circumstances, and is unlikely to apply where a document was only generated by, or reporting on, iniquitous conduct.
- To the extent that privileged and non-privileged information are so entwined that attempts to redact the privileged parts are unworkable, the balance falls in favour of withholding the entire document.