The Court Of Appeal Examines The Iniquity Exception To Legal Professional Privilege In Candey Ltd V Bosheh [2022] EWCA Civ 1103

• Published date: 26 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Debevoise & Plimpton
• Author: Mr Christopher Boyne, Patrick Swain and Julia Caldwell

Key Takeaways:

• The Court of Appeal has recently considered whether a solicitor can rely on otherwise privileged material in a claim against former clients by relying on the Iniquity Exception to privilege where it is alleged that those clients had made false statements to the solicitors and to the court.
• The Court of Appeal confirmed that the Iniquity Exception to privilege is narrow and requires an abuse of the solicitor/client relationship which is so serious as to put the advice or conduct outside the scope of the professional engagement.
• The Court of Appeal also confirmed that there is no implied duty of good faith owed by clients to solicitors in respect of retainers.

Introduction

The Court of Appeal in Candey Ltd v Bosheh [2022] EWCA Civ 1103 recently considered whether a solicitor can rely on otherwise privileged material in a claim against former clients where it is alleged that the clients had made false statements to their solicitors and the court.

The case concerns proceedings brought by a firm of solicitors, Candey (the "Solicitors"), for breach of retainer against its former client, Mr Bosheh, and against Mr Salfiti for procuring breach of the retainer and/or unlawful conspiracy. The Solicitors' case relied heavily on privileged and confidential information-indeed, the disclosure of such information was the foundation of all but one cause of action raised by the Solicitors. The Court of Appeal was asked to consider:

• Whether a client was in breach of an implied duty of good faith by settling underlying litigation on terms which meant the solicitors had no entitlement to their costs under a Conditional Fee Agreement ("CFA");
• Whether the Solicitors could rely on privileged documents in support of their claims; and
• Whether the Solicitors could rely on confidential documents which had been provided to them by a third party after the underlying proceedings had settled.

Background

The case concerns proceedings brought by the Solicitors against in relation to a retainer entered into with their former clients (the "ex-Clients") who had settled proceedings without providing for any recovery for the Solicitors' costs. The Solicitors sought to recover their costs from the ex-Clients on the basis that the clients were in breach of an implied duty of good faith and in repudiatory breach of the retainer.

The original proceedings concerned a claim brought by Sheikh Mohamed against (among others) Mr Bosheh, his son (who was also a client of Candey) and Mr...