Alfie Lewis explores important aspects of privilege following the decision in Al Sadeq V Dechert [2024] EWCA Civ28

The Court of Appeal has recently handed down its judgment in Al Sadeq v Dechert [2024] EWCA Civ 28 on a number of important areas of privilege, which allows a party to legal proceedings to resist the disclosure of certain documents. In particular, the judgment shed light on:

The threshold test for the iniquity exception;
The legal test for the relationship between the iniquity and the communication;
The applicability of litigation privilege to non-parties to litigation;
The applicability of the Three Rivers (No 5) principle to litigation privilege; and
The applicability of legal advice privilege to investigations.

Background

Mr Al Sadeq had been a legal adviser for the Ras Al Khaimah Investment Authority (“RAKIA”), the sovereign wealth fund for the Emirate of Ras Al Khaimah (“RAK”), between 2008 and 2013. The Chairman and CEO of RAKIA between 2005 and 2012 had been Dr Khater Massaad. RAKIA asserts that, in or about 2012, it discovered that Dr Massaad and associates had committed fraud against RAKIA and associated entities, misappropriating funds and causing losses of hundred of millions of dollars.

Dechert had been engaged in 2013 to assist with an investigation of Dr Massaad and others in relation to the suspected frauds. Mr Al Sadeq brought claims against Dechert and a number of ex-Dechert lawyers for the use of threats and/or mistreatment and/or other unlawful methods to force Mr Al Sadeq to give evidence, including false evidence, to strengthen the case against Dr Massaad.

Following standard disclosure by the defendants, Mr Al Sadeq raised a number of challenges to the defendants’ claims to privilege in an application. The application was heard by Murray J, who dismissed Mr Al Sadeq’s application. Mr Al Sadeq sought to appeal, and was granted leave.

The threshold test for the iniquity exception

The iniquity exception to legal professional privilege prevents a party from relying on legal advice or litigation privilege to withhold communications where those communications were created in furtherance of fraud or equivalent underhand conduct which in is breach of a duty of good faith or contrary to public policy.

Both Mr Al Sadeq and the defendants adopted the formulation of the threshold test for the iniquity exception in Kuwait Airways (No 6), which requires a strong prima facie case of iniquity; however, the parties disagreed on how that formula applies in practice. Popplewell LJ decided that, apart from in exceptional cases, the threshold test for the iniquity exception is the balance of probabilities test such that the existence of the iniquity must be more likely than not on the material available.

This test balances the two competing policies at play in cases where the iniquity exception is said to apply. On the one hand, there is a policy in favour of maintaining legal advice privilege and litigation privilege in communications between clients and their lawyers, so that parties can communicate freely with their lawyers without fear of what they say being disclosed and used against them. On the other hand, there is a strong public interest in iniquity coming to light, and in preventing abuse of the lawyer-client relationship to withhold evidence of iniquity from the court. As the loss of privilege is irremediable, and as the decision on the applicability of the iniquity exception will often be made on a provisional basis, any lower threshold test would risk the loss of privilege in communications that were more likely than not to be privileged.

The legal test for the relationship between the iniquity and the communication

Again, both Mr Al Sadeq and the defendants were agreed on the formulation of the relevant legal test – the communication must be created ‘as part of or in furtherance of the iniquity’ – disagreed on how that test applies in practice. The defendants argues that this test only covers documents that are iniquitous themselves, and does not cover documents merely revealing the iniquity where the client used the lawyer as an innocent tool in the iniquity. Mr Al Sadeq, on the other hand, argued that all documents reporting on or evidencing the iniquity, as well as all documents that would not exist but for the iniquity would fall under the iniquity exception.

Popplewell LJ adopted a two-pronged test, the satisfaction of either element would suffice. To fall within the iniquity exception, a document must be part of or in furtherance of the iniquity. Documents that are part of an iniquity will include documents which report on or reveal the iniquitous conduct. Popplewell LJ drew support for this conclusion from the rationale of the iniquity exception – that where the exception applied the iniquity should be revealed. As such, there was no basis for excluding a document within the possession of a lawyer being used as an innocent where that document exposed the iniquity.

The applicability of litigation privilege to non-parties to litigation

This issue arose in the context of Dechert having been instructed by different RAK entities during the course of their investigation into Mr Massaad’s alleged fraud. In particular, RAKIA, the victim of Mr Massaad’s alleged fraud, was not Dechert’s client from 2014 onward; instead, Dechert’s client had been RAK Development, a separate entity. Mr Al Sadeq argued that there could be no litigation privilege in circumstances where there were no legal proceedings to which RAK Developments was party, nor were any such proceedings anticipated.

Popplewell LJ held that litigation privilege is not restricted to parties to litigation. Provided that dominant purpose of a communication is litigation then a documents will attract privilege. The rationale for litigation privilege is twofold:

that a party must be able to consult with his or her lawyer in confidence without fear of what they discuss being revealed without his or her consent; and
a party must be free to prepare his or her case as fully as possible without the risk that the other side might gain access to the material generated by his or her preparations.

Litigation privilege thus carves out a ‘safe space’ for parties and their lawyers to communicate freely with third parties for the dominant purpose of litigation.

Though he left open the question of whether it was necessary for a third-party to litigation to have sufficient interested in the litigation for it to benefit from litigation privilege, Popplewell LJ pointed out that RAK Development had instructed Dechert to collect evidence in relation to litigation in which it was interested – RAK Development therefore had a need of a safe space for this.

The applicability of the Three Rivers (No 5) principle to litigation privilege

The Three Rivers (No 5) principle holds that legal advice privilege will only attach to communications between a lawyer and individuals authorised to receive legal advice on behalf of a corporate client. For example, communications between a law firm and a junior employee of a company not authorised to receive legal advice will not attract legal advice privilege because the junior employee is not properly considered the law firm’s client. Mr Al Sadeq argued that this principle applies to litigation privilege just as it applies to legal advice privilege.

Popplewell LJ held that the Three Rivers (No 5) principle has no application in relation to litigation privilege. Whereas legal advice privilege applies only to communications between a client and a lawyer, litigation privilege is not so restricted and applies to communications with third parties. Where litigation privilege applies to communications with third parties, there is no basis to exclude communications between a lawyer and an employee of a corporate client not authorised to receive legal advice where the dominant purpose of those communications is litigation.

The applicability of legal advice privilege to investigation

Mr Al Sadeq argued that since much of the work performed by Dechert in investigating Mr Massaad’s alleged fraud was by way of investigation and required no legal skill or analysis, legal advice privilege should not apply. Popplewell LJ dismissed this argument, pointing out that legal advice is not restricted to advice on black letter law and its application to particular facts, but extends to practical aspects of, and preparations for, legal proceedings. This includes advice on what evidence can and should be sought in the context of its use for assessing liability and/or bringing proceedings. A lawyer’s skills therefore include taking statements, assembling the facts and handling the evidence, and the exercise of advocacy. Investigatory works such as interviewing those suspected of crimes and potential witnesses, and presenting evidence to a public prosecutor to assist potential prosecution would therefore fall within the necessary legal context for legal advice privilege to arise between a lawyer and his or her client.

Conclusion

Al Sadeq not only provides vital clarity to the law of privilege, but illustrates the approach of the courts to questions of privilege. Popplewell LJ took a purposive approach to each of the above issues, asking what was the underlying purpose and function of each aspect of legal professional privilege, and finding the answer by asking what would best facilitate the realisation of that purpose. As can be seen in the distinction between legal advice privilege and litigation privilege in relation to the Three Rivers (No 5) principles, it is important that legal advisors are aware of the difference in the purpose and function of these different forms of privilege as what holds true for legal advice privilege may not hold true for litigation privilege!