A Must-Read On Legal Privilege

• Published date: 20 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: K&L Gates
• Author: Louise Bond, Maya C. Ffrench-Adam and Martin King

The Court of Appeal judgment in Al Sadeq v Dechert (and others) [2024] EWCA Civ 28 is a must-read for litigators, in-house lawyers and anyone else who may become involved in English litigation, especially following an investigation, for its discussion of legal privilege (as well as for the extraordinary facts alleged).

Privilege is a complex area which can easily be misunderstood. Whilst other commentators on this case have concentrated on the extent to which unlawful or underhand conduct can preclude privilege protection (the "iniquity exception"), just as importantly, the judgment sheds light on the scope of privilege under English law, by whom privilege can be asserted, and the challenges to be overcome in contesting it.

Background Facts

Dechert LLP (Dechert) was engaged by an investment arm of the Ras Al Khaimah government to assist with the investigation of alleged frauds by individuals, including the former chairman of the Ras Al Khaimah Investment Authority (RAKIA), and Mr Al Sadeq (a former legal adviser to RAKIA, and the Claimant in this action). Mr Al Sadeq was interrogated in the course of those investigations, allegedly in a most extreme way. For example, it is said that he was subjected to: kidnap and extraordinary rendition; unlawful detention in solitary confinement for over 18 months; interrogation by Dechert lawyers while detained; and threats by certain of the lawyers against him, his wife, and his children. This gave rise to claims that Dechert and certain of its lawyers (together, the Defendants) were complicit in the use of threats, mistreatment and/or unlawful methods to force him into giving evidence (including false evidence) and causing him emotional, psychological, moral and financial harm, loss and damage.

In the ongoing litigation, Mr Al Sadeq challenged the Defendants' right to withhold documents based on legal privilege. He contended the Defendants' legal representatives had taken the wrong approach to the iniquity exception and to other privilege issues when giving disclosure. At first instance, Mr Justice Murray held that the Defendants had taken the correct approach, so Mr Al Sadeq appealed.

Court of Appeal Decision

Iniquity Exception

Lord Justice Popplewell gave lead judgment and confirmed that the merits threshold for the existence of an iniquity preventing legal privilege from arising is a "balance of probabilities test" (i.e. does it appear more likely than not that the relevant iniquity existed?). The court considered...