Litigation Privilege Not Restricted To Parties To Litigation, And Other Helpful Points Regarding Privilege

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Corporate/Commercial Law, Privilege
• Author: Mr Julian Copeman and Maura McIntosh
• Published date: 02 May 2023

The High Court has clarified a number of points relating to legal professional privilege in a recent decision in which it dismissed a claimant's challenges to a defendant law firm's assertion of privilege over various categories of documents: Al Sadeq v Dechert LLP [2023] EWHC 795 (KB).

The key points arising from the decision are:

• Litigation privilege can, in some circumstances, be asserted by non-parties to litigation, such as a victim of an alleged crime The question is whether the non-party has a sufficient interest in the anticipated litigation such that it seeks legal advice and, in that connection, communicates with third parties to obtain information to enable its lawyers to advise.
• Legal advice privilege is likely to apply where lawyers are engaged to conduct an investigation, unless there is clear evidence that the engagement does not encompass the provision of legal advice and assistance related to the investigatory work.
• Part of a document can be redacted and withheld on grounds of privilege without needing to establish that it is severable from the unredacted parts.
• The test for the application of the iniquity exception to privilege is whether a document was created in furtherance of a fraud or other iniquity. It is not sufficient that the document was generated by or reports on the iniquitous conduct.

Background

The claimant is the former Deputy Chief Executive Officer of the Ras Al Khaimah Investment Authority ("RAKIA"), the investment authority of the Emirate of Ras Al Khaimah ("RAK"). After his resignation, he was convicted of fraud in the RAK courts and sentenced to imprisonment. He alleges that he was wrongfully arrested in Dubai and taken to RAK without proper legal process, that the trial was politically motivated, and that he was wrongfully convicted and imprisoned.

The defendant international law firm ("the Firm") acted for the Investment and Development Office of the Government of RAK, and subsequently RAK Development LLC, in the investigation concerning alleged fraud and misappropriation of public assets at subsidiary companies of RAKIA which led to the claimant's arrest and conviction.

The claimant brought proceedings against the Firm and three of its former partners contending that they had committed serious wrongs against him in the course of their work on the investigation. These included being responsible for (i) his unlawful arrest in and abduction from his home in Dubai, (ii) his extended detention in unlawful and...