Legal Privilege In Fraud Claims ' Some Useful Clarifications

• Published date: 08 May 2023
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Herbert Smith Freehills
• Author: Herbert Smith Freehills

A recent High Court decision regarding legal professional privilege has addressed a number of issues that may have particular relevance in fraud claims: Al Sadeq v Dechert LLP [2023] EWHC 795 (KB).

The proceedings involved allegations of serious wrongdoing against the claimant by an international law firm in the course of the firm's work on an investigation into an alleged fraud. The court dismissed the claimant's challenges to the firm's privilege claims over various categories of documents.

The key points arising from the decision are:

• Litigation privilege can potentially be asserted by non-parties to litigation, if they have a sufficient interest in it that they seek legal advice and, in that connection communicate with third parties to obtain information to enable the advice to be provided (provided all the other conditions were met including the dominant purpose test). The court observed that a victim of fraud is a good example of a person likely to have such a sufficient interest in proceedings to which it is not a party or prospective party. While the relevant litigation in this case was criminal proceedings, the judgment does not indicate that the...