Can Non-Parties To Proceedings Claim Litigation Privilege?

• Published date: 02 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Norton Rose Fulbright
• Author: Mr Scott Speirs

In Al Sadeq v Dechert LLP & Ors [2023] EWHC 795 (KB) the claimant applied to the High Court to challenge the defendant's claims to privilege over various documents. The grounds of challenge included that litigation privilege did not apply as the defendant's client had not been party to the relevant litigation: the defendant had created documents in connection with criminal proceedings to which its client was not a party. The court held that, in some circumstance, litigation privilege could be claimed by a non-party to proceedings, provided they have a sufficient interest in the litigation.

Background

Dechert LLP (the Firm) was instructed to carry out an investigation into alleged frauds and misappropriation of public assets at RAKIA, the sovereign wealth fund of the Emirate of Ras-Al-Khaimah (RAK). The Firm's client was the Investment and DevelopmentOffice of the Government of RAK and then later, RAK Development LLC. As a result of the investigation, the former Deputy Chief Executive Officer of RAKIA (the Claimant) was tried and convicted of fraud in the RAK courts, receiving a sentence of eight years imprisonment. The Firm's client was not a party to those criminal proceedings.

The Claimant brought proceedings against the Firm and three of its partners alleging that they had committed serious wrongs against him during the course of their work on the investigation, including being responsible for his unlawful interrogation and his unlawful detention.

In the current application, the Claimant challenged the Firm's claims to legal professional privilege over various documents on a number of grounds. This briefing focuses on the third ground, that litigation privilege did not apply to documents created by the Firm for its investigation as the Firm's client was not party to the relevant litigation (i.e. the criminal proceedings against the Claimant).

The decision

The Claimant argued that litigation privilege can only be claimed over communications between a party to litigation or its lawyers, on the one hand, and third parties on the other hand. This does not include victims of a crime as the victim is not a party to the related criminal proceedings.

Murray J noted that this was both the most interesting and the most difficult element of the application. He found that there was no clear authority on the point. The judge commented that while three of the leading privilege text books support the proposition that only a potential or actual party to litigation can...