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

The iniquity exception to legal professional privilege requires a prima facie case of iniquity. In this context, that means that the iniquity is more likely than not on the material available. The same threshold applies whether or not the iniquity will be an issue at trial.

Where the exception applies, privilege does not attach to documents brought into existence as part of or in furtherance of the iniquity. Documents that reveal or report it may be within the first category. The relationship is not satisfied merely because the document would not otherwise have existed.

Litigation privilege may protect communications made for the dominant purpose of adversarial proceedings even though the privilege holder will not be a party to them. The restricted-client rule in Three Rivers District Council v Governor and Company of the Bank of England (No 5) has no application to litigation privilege.

The claimant alleged that the respondents, a law firm and former partners, participated in or were complicit in unlawful treatment used to obtain evidence against others while he was detained in Ras Al Khaimah. In disclosure, the respondents claimed litigation privilege and, in a small number of instances, legal advice privilege over documents produced during their investigation for their client.

Murray J dismissed the claimant’s challenge save for an issue concerning the restricted-client principle for legal advice privilege: [2023] EWHC 795 (KB). The claimant appealed on the iniquity exception and litigation privilege. The respondents cross-appealed, solely to preserve their challenge to the binding restricted-client rule. The central issues were the evidential threshold and documentary connection for the iniquity exception, the availability of litigation privilege for a non-party, and the application of the restricted-client rule.

1. The appeal was allowed in part. The court held that the claimant had established, on the material available, a prima facie case of each of the three iniquities relied on: unlawful arrest, rendition and detention; unlawful detention conditions; and denial of effective legal representation. The disclosure exercise must therefore be undertaken again by applying the correct iniquity principles.

2. The required merits threshold is a prima facie case. In this context, that means that the iniquity is more likely than not on the available material. It is not a test of a real prospect of success and should not be qualified as “strong” or “very strong”. There is no distinction between an iniquity that is an issue in the proceedings and one that is not. Exceptionally, a court may be able to consider the balance of harm, but the generally applicable test is the balance of probabilities.

3. Once the exception applies, privilege does not arise in documents and communications brought into existence as part of or in furtherance of the iniquity. “Part of” includes documents that report on or reveal the iniquitous conduct, including those made in preparation for it. A mere “but for” causal connection is too remote. The exception remains dependent on abuse of the lawyer-client relationship. A communication made specifically to obtain bona fide legal advice about past conduct remains within the ordinary professional engagement and is not stripped of privilege merely because it reveals iniquity.

4. The court could not infer that particular additional documents had been wrongly withheld. Nevertheless, the respondents’ previous approach was too narrow and a fresh review was required. The applications to admit the further evidence were refused.

5. Litigation privilege is not confined to proceedings to which the privilege holder is, or expects to be, a party. Where litigation is reasonably in prospect and the dominant-purpose requirement is met, privilege may attach in relation to non-party criminal or extradition proceedings. The court left open whether a separate sufficient-interest requirement exists, although it was satisfied on these facts.

6. The Three Rivers (No 5) restricted-client principle does not apply to litigation privilege. It remains binding in relation to legal advice privilege, so the respondents’ cross-appeal was dismissed. Investigatory work undertaken by lawyers may be within a legal context, but legal advice privilege must be assessed document by document; a blanket exclusion for investigatory communications was not justified.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal on the iniquity exception and required a fresh privilege review. Dismissed the remaining appeal grounds and the respondents’ cross-appeal: [2024] EWCA Civ 28.
• High Court, King’s Bench Division: Murray J dismissed the claimant’s privilege challenge save for the application of the restricted-client rule to legal advice privilege: [2023] EWHC 795 (KB).