Karam Salah Al Din Awni Al Sadeq v Dechert LLP & Ors

Legal professional privilege belongs to the client and is absolute unless waived, overridden by statute, or excluded by the iniquity exception. The exception applies only where the communication or document is itself iniquitous or was created to further an iniquitous purpose; material merely generated by or reporting on alleged wrongdoing is insufficient. The exception is exceptional and will ordinarily require at least a strong prima facie case where the alleged iniquity overlaps with issues for trial.

Litigation privilege may be claimed by a non-party with a sufficient interest in actual or contemplated adversarial litigation, provided the litigation is reasonably in prospect and the dominant-purpose and confidentiality requirements are satisfied. Privileged and non-privileged material may be redacted unless separation is impracticable, in which event the whole document may be withheld.

The claimant challenged the defendants’ disclosure and withholding of documents in the underlying proceedings. The challenges concerned the iniquity exception, legal advice privilege, litigation privilege, redactions, and alleged waiver.

The court considered whether the defendants had applied the correct tests, whether a putative victim could claim litigation privilege in relation to criminal proceedings to which it was not a party, and whether the evidence justified going behind the defendants’ privilege review. The application sought declarations and directions requiring further review and disclosure.

1. Iniquity exception. The proposed direction covering documents generated by or reporting on alleged detention, detention conditions and denial of legal representation stated an over-broad test. The applicable test is whether the document is itself criminal, fraudulent or otherwise iniquitous, or was intended to further such a purpose. The defendants’ review process applied that test correctly. The court therefore dismissed this part of the application without deciding the evidential threshold. Had it been necessary, at least a strong, and possibly a very strong, prima facie case would have been required because the alleged iniquities were issues for trial.
2. Legal advice privilege. The defendants were engaged as lawyers to investigate and advise in a relevant legal context. Investigatory work and related legal advice formed part of a continuum of legal services. The evidence did not rebut that assumption, and the defendants had applied the dominant-purpose test correctly. The requested declarations were refused.
3. Litigation privilege. The defendants discharged the evidential burden of explaining when relevant litigation was reasonably contemplated. There was no sufficient basis to go behind Mr Allen’s evidence. A non-party may invoke litigation privilege where it has a sufficient interest in actual or contemplated litigation such that it seeks legal advice and obtains or communicates with third parties to secure materials for that advice. The court declined to follow Minera Las Bambas on the contrary proposition. Criminal proceedings concerning Mr Al Sadeq were reasonably contemplated shortly after his arrest from the perspective of the relevant clients.
4. Redactions and waiver. There is no requirement that privileged material be severable from unredacted material before partial redaction. If privileged and non-privileged material are so intertwined that redaction is impracticable, the whole document may be withheld. The pleaded reference to matters becoming apparent did not amount to waiver, and the defendants lacked authority to waive the clients’ privilege.
5. The Privilege Application was dismissed.