Al Sadeq v Dechert LLP | Cleaver Fulton Rankin

A recent decision of the Court of Appeal clarifies several crucial aspects concerning legal professional privilege.

The decision in Al Sadeq v Dechert LLP [2024] EWCA Civ 28 affirms that litigation privilege can extend to non-parties under specific circumstances, expanding its scope beyond conventional parties involved in legal proceedings. This inclusivity potentially benefits various entities such as victims of alleged crimes, liability insurers, litigation funders, parties affected by group litigation, joint ventures and witnesses. However, for privilege to apply, the document in question must have been prepared primarily for seeking or obtaining legal advice, or evidence in connection with reasonably anticipated litigation.

The decision also clarified the application of legal advice privilege, stating that it extends to situations where lawyers are engaged to conduct investigations, provided that they are instructed for their legal expertise and the investigation occurs within a legal context. Documents generated purely for investigative purposes divorced from legal considerations would not be privileged.

Furthermore, the ruling elucidated the test for invoking the iniquity exception to privilege. It affirmed that this exception applies when a document is created as part of or in furtherance of an iniquity, including those reporting on or revealing the iniquitous conduct. The court emphasized that the exception requires a prima facie case of iniquity, meaning that the existence of wrongdoing is more likely than not based on available evidence. Notably, the lawyer’s awareness or involvement in the misconduct is not a prerequisite for invoking the exception, but an abusive lawyer-client relationship must exist.

Moreover, the Court of Appeal rejected attempts to extend the Three Rivers (No 5) principle, which determines the “client” for the purposes of legal advice privilege, to litigation privilege. The decision underscored that while the principle is binding in the context of legal advice privilege, it does not apply to litigation privilege.

This case concerns a dispute between the former Deputy CEO of Ras Al Khaimah Investment Authority and an international law firm, allegations of wrongful conduct during an investigation into fraud and misappropriation of public assets. The court’s decision rejected challenges to the law firm’s claims of legal professional privilege, affirming the firm’s entitlement to privilege in various aspects of the case.

In conclusion, the Al Sadeq v Dechert LLP ruling provides significant clarity on legal professional privilege, particularly concerning the extension of litigation privilege to non-parties and the application of the iniquity exception. This decision has far-reaching implications for legal proceedings involving various stakeholders and underscores the importance of understanding privilege in legal contexts.

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This article has been produced for general information purposes and further advice should be sought from a professional advisor.