Privilege – some good news for non-parties

Before looking at the decision in Al Sadeq, let’s run through the fundamental rules of privilege.  

What is privilege?

Privilege entitles a party to withhold evidence from production to a third party or court.  

There are two main types of privilege that might attach to confidential communications. They are:

1. Legal advice privilege
2. Litigation privilege

Legal advice privilege applies to communications that are made:

• By a client to a lawyer or by a lawyer to a client
• Where the dominant purpose of the communication is to obtain or to give legal advice

Litigation privilege covers communications that are made:

• Between a lawyer and a client, a lawyer and a third party or a client and a third party
• Where the dominant purpose of the communication is to conduct or aid the conduct of actual litigation or litigation which is reasonable contemplated or in prospect

Privilege is not guaranteed; it can be lost, waived or it may never have come into existence in the first place. For this discussion, the iniquity exception is relevant: there is no legal professional privilege (whether legal advice privilege or litigation privilege) if the communication or document in question was brought into existence for the purpose of furthering a crime or fraud.

The background to the Al Sadeq case

The claimant is a former Deputy Chief Executive Officer for the Ras Al Khaimah Investment Authority (RAKIA). The Government of Ras Al Khaimah instructed the defendant international law firm Dechert LLP to undertake an investigation into alleged fraud and misappropriation of public assets relating to transactions carried out by subsidiary companies of RAKIA. The claimant was subsequently convicted of fraud and sentenced to imprisonment in the Emirate of Rask Al Khaimah courts.

The claimant brought claims against the law firm and three former partners under UAE law, alleging breaches of the constitution and criminal legislation, as well as various breaches of his human rights.

The claimant contended that during the course of the investigation, the defendant lawyers had committed serious wrongs against him, including (i) unlawful arrest and abduction from his home in Dubai, (ii) extended detention in unlawful and degrading conditions (iii) being tortured, and (iv) being denied proper legal representation. The claimant also alleged that the defendants sought to draw, and to a degree were successful in drawing, false confessions from him.

The application to challenge privilege

The claimant challenged the defendants’ claim to privilege over certain documents. He argued that the iniquity exception applied and that claims to legal advice and litigation privilege were ill-founded. He also challenged the approach taken by the defendants to redaction of various documents.

The defendant firm asserted its claim to privilege, commenting that it was not surprising that the majority of the documents would be withheld on this ground from disclosure in a case involving proceedings against solicitors, arising out of their work as solicitors, in circumstances where their former clients did not agree to waive their privilege over their documents.

The decision

Murray J dismissed the claimant’s application on all grounds.

• The iniquity exception: The defendant firm applied the test of whether the document was brought into existence for the purpose of furthering a crime or fraud during the disclosure process. It did not identify any documents to which this exception applied. The judge concluded it had applied the test correctly. The court will be slow to deprive a privilege-holder of the privilege, particularly on an interlocutory application.
• Legal advice privilege: The work had been undertaken in a relevant legal context and was therefore covered by legal advice privilege. The defendants had been engaged to advise and assist in their capacity as lawyers and were engaged as lawyers with experience in conducting investigations of this kind. Where lawyers are engaged to conduct an investigation, it is a reasonable and fair assumption that the engagement encompasses the investigatory work and related legal advice and assistance as part of a continuum of legal service.
• Litigation privilege: The claimant argued that litigation privilege did not apply in relation to communications undertaken in the course of the investigation because the firm’s clients were not a party to the current application. The judge rejected this argument. He could see no reason as a matter of principle or policy to limit the availability of litigation privilege to a prospective or actual party to prospective, pending or actual litigation. The victim of a crime is a good example of a person likely to have sufficient interest in the litigation to wish to obtain legal advice about the proceedings. 
• Redaction: The judge rejected the claimant’s submission that the defendants were not entitled to redact parts of documents unless they represented separate or severable communications from the unredacted parts. He commented that where privileged and non-privileged material is so intertwined that redacting the privileged parts of a document is not feasible, then the balance falls in favour of withholding the entire document on the basis of privilege.

Comment

The decision in Al Sadeq demonstrates that the issues underpinning privilege are continuously being challenged and, in this instance, the scope for the application of litigation privilege has been widened. Murray J did comment that it would be rare that a non-party would have sufficient interest in litigation so as to seek legal advice in relation to the litigation but a victim of a crime is a good example of a person likely to have such interest. Given the importance of the right to claim privilege over legal advice, we will no doubt see some further pushing of the boundaries in the future.

See our briefing on litigation privilege and the disclosure of investigatory reports.