Akhmedova v Akhmedov

Where confidential or privileged documents are obtained improperly, the court must control their review and use, particularly where the owner is unrepresented or disengaged. Directions should be sought promptly, and independent counsel assists but does not replace the judge as decision-maker.

The fraud or iniquity exception applies where communications are made in furtherance of a scheme to dissipate or conceal assets and frustrate enforcement of a judgment. Privilege is defeated at an interlocutory stage by a strong prima facie case. Even where procedural safeguards were missed, the court may permit retention and use if refusal would be disproportionate and inconsistent with the interests of justice.

The wife applied for directions concerning documents supplied to her lawyers by a former adviser to her husband. The documents contained confidential financial information and legal communications. An initial independent review treated most documents as prima facie privileged, but identified material potentially covered by the fraud or iniquity exception.

The husband was unrepresented, had not engaged with the application, and had failed to comply with substantial financial orders. The wife’s lawyers had not sought directions before reviewing the documents, contrary to the guidance in UL v BK. The central questions were whether the documents remained confidential or privileged, whether the procedural failure required their return or destruction, and what directions should govern future cases.

1. Disposition. The application was allowed. The wife and her lawyers could retain and use the reviewable documents as if disclosed by the husband. No further independent review was required. A copy was to be provided to the husband if requested.
2. Confidentiality and privilege. The principles in Tchenguiz v Imerman apply, but may operate differently where the documents themselves disclose an iniquitous scheme. The court may refuse equitable relief where the claimant lacks clean hands or where relief would impede the administration of justice.
3. Fraud exception. A scheme to dissipate or conceal assets to frustrate enforcement of an anticipated judgment engages the fraud or iniquity exception to legal professional privilege. At an interlocutory stage, a strong prima facie case is required. The exception is not confined to civil fraud in a narrow sense. The court accepted that the communications showed a continuing campaign to move assets to jurisdictions where enforcement would be difficult and to create charges designed to frustrate enforcement.
4. Procedural safeguards. Under the guidance in UL v BK, directions must be sought as soon as practicable where the owner is unrepresented. Delay because the material may not yet be needed is unacceptable. Independent counsel may review the documents and report, but the judge remains the ultimate decision-maker if either party disputes the review.
5. Discretion after procedural failure. The failure to obtain directions did not require exclusion or destruction. The wife had not deliberately sought an improper advantage, had not unlawfully accessed the documents, had not used them in proceedings, and had sought directions before deployment. Given the husband’s contempt, evasion of enforcement, and failure to provide disclosure, destruction would have been disproportionate.
6. Further guidance. The observations concerning written representations to independent counsel and amendments to Family Division search orders were guidance for future cases. The judge considered that Order 3.2 should contain safeguards equivalent to paragraph 11 of Practice Direction 25A, including procedures for disputed privilege and restrictions on searches.