Saxton v Bruzas

Legal professional privilege is not available for material evidencing fraud or iniquity. The concept is broad and includes dishonesty, trickery, sham contrivances and underhand conduct, but a strong prima facie factual foundation is required. Conduct that is merely disreputable or falls below good ethical standards is insufficient. Where fresh material is said to justify reopening concluded proceedings, the court must assess both whether privilege is displaced and whether the material adds anything materially new to the evidence already considered. Material that merely reformulates an already litigated case will not justify reopening the proceedings.

The wife applied to reopen and set aside Parker J’s decision of 11 December 2017, which had dismissed her application to set aside a 2014 financial remedy consent order. She relied on a statement from a former junior employee of the husband’s solicitors, together with related communications, alleging that the husband and his legal team had deliberately withheld a letter concerning periodical payments and had misled the court.

The issues were whether the new material attracted legal professional privilege, whether the fraud or iniquity principle displaced that privilege, and whether the material justified reopening the proceedings before Parker J.

1. Application refused. The application to admit the whistle-blower’s statement was refused, and the application to set aside and reopen Parker J’s order was summarily refused.
2. Material recording communications within the husband’s legal team would ordinarily attract legal professional privilege. The Public Interest Disclosure Act 1998 and Part 4A of the Employment Rights Act 1996 added nothing to the issues, which depended on the content and use of the material in these proceedings.
3. The fraud or iniquity principle is not narrowly confined to criminal or civil fraud. It extends to dishonesty, fraudulent breach of trust, fraudulent conspiracy, trickery, sham contrivances and comparable underhand conduct. The court must nevertheless be satisfied that there is a strong prima facie case with a factual foundation. Legal professional privilege is not displaced by conduct that is merely disreputable or reflects poor ethical standards.
4. The new material did not establish such a case. The covert recording and the reported conversation showed, at most, discussions about litigation and the solicitor’s failure to send the letter. They fell well short of establishing a deliberate conspiracy or malevolent fraudulent conduct. Parker J had already considered the central issue and had rejected the suggestion that the solicitor’s conduct resulted from a deliberate manipulative tactic.
5. In any event, the new material did not materially advance the wife’s case. It presented the same issue in a different form and did not justify reopening matters that had already been fully litigated.

• High Court (Family Division): Parker J dismissed the wife’s earlier application to set aside the 2014 consent order on 11 December 2017. The present court refused to admit the new material and dismissed the application to reopen that decision.