Guidance On Key Concepts Of Privilege From Court Of Appeal

• Published date: 23 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Lewis Silkin
• Author: Neil Parkes

The Court of Appeal ("COA") has handed down a judgment dealing with a number of important points regarding the scope of legal professional privilege and the iniquity exception.

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:

"...