Various Claimants v News Group Newspapers Ltd

Legal professional privilege is not lost merely because legal advice is given against a background of suspected wrongdoing. The advice or communication must further, promote or form part of the iniquitous conduct. The party seeking to displace privilege must establish a strong prima facie case of relevant iniquity, particularly because inspection may irreversibly expose privileged material. The principle extends beyond criminal purposes to dishonest, fraudulent or seriously improper conduct in civil matters. Where the evidence shows only a possible desire to secure silence, manage litigation risk or co-operate with another party, without a strong prima facie case that the legal advice promoted wrongdoing, privilege remains.

The claimants applied for inspection of two documents over which News Group Newspapers Ltd claimed legal advice privilege: Post-it notes attached to an email listing activities undertaken by Glenn Mulcaire, and a memorandum concerning options in relation to his threatened employment-related claim. The claimants alleged that the documents furthered an iniquitous scheme to conceal the extent of unlawful information-gathering activities and to secure Mr Mulcaire’s silence before his sentencing hearing. The central issues were whether privilege had been established and, if so, whether the iniquity exception displaced it.

1. The claimant’s application failed. The court declined to inspect either document because the evidence did not justify that exceptional course.
2. The burden lay on the party claiming privilege. The claim had to be stated with sufficient clarity and specificity, consistently with WH Holdings Ltd v E 20 stadium LLP [2018] EWCA Civ 2652 and West London Pipeline and Storage Ltd v Total UK [2008] 2 CLC 258. The privilege claim for the Mulcaire options memorandum was clearly established. The description of the Post-it notes was thin but just sufficient.
3. The iniquity exception applied where communications were made in furtherance of a criminal purpose or comparable dishonest, fraudulent or seriously improper conduct. It was not enough that advice was given in a context where iniquity was possible or contemplated. The advice itself had to further or form part of the iniquity. The principle, recognised in Kuwaiti Airways Corporation v Iraqi Airways Corporation [2005] EWCA Civ 286, was capable of applying in civil proceedings, as illustrated by Barclays Bank v Eustice [1995] 1 WLR 1238.
4. The required threshold was a strong prima facie case. The court preferred that standard, having regard to the seriousness of removing privilege and the irreversibility of inspection, following the approach in Derby & Co Ltd v Weldon (No 7) [1990] 1 WLR 1156.
5. The surrounding evidence could support an inference that the defendant wanted Mr Mulcaire to remain silent and wished to manage the risks arising from his prosecution. It did not establish, to the required standard, that the options memorandum advised on how to commit iniquity or that the Post-it notes related to the alleged concealment scheme. Both documents therefore remained privileged.