Can non-parties claim litigation privilege?

The decision in Al Sadeq v Dechert LLP [2023] EWHC 795 (KB) clarifies the position in relation to whether non-parties can claim litigation privilege and also deals with some useful points relating to legal professional privilege.

The general basis of litigation privilege is that it applies to communications involving a prospective or actual party to litigation (actual or expected). In Al Sadeq, Murray J found that litigation privilege applies equally to non-parties to proceedings, such as a victim of a crime, provided the non-party has a sufficient interest in the litigation and fulfils the other necessary conditions for litigation privilege to apply. This includes providing that litigation is in reasonable contemplation and the communications are for the dominant purpose of enabling the provision of legal advice in respect of the relevant litigation.

Background

In Al Sadeq, the Claimant, Mr Karam Al Din Awni Al Sadeq (Al Sadeq) was a Jordanian citizen and a Jordanian-qualified lawyer. In November 2008, he joined the Ras Al Khaimah Investment Authority (RAKIA), the investment authority of the Emirate of Ras Al Khaimah (RAK). After he resigned from RAKIA, he claimed he was unlawfully arrested at his home in Dubai and subsequently, in a number of Ras Al Khaimah court cases, wrongly convicted of fraud and sentenced to imprisonment.

Dechert LLP (Dechert) acted for the Investment and Development Office of the Government of RAK (and subsequently RAK Development LLC) in the investigation concerning alleged fraud and misappropriation of public assets at subsidiary companies of RAKIA. Al Sadeq was alleged to have participated in this fraud.  

Al Sadeq contended that Dechert committed serious wrongs against him in the course of its work on the investigation, including Dechert being responsible for Al Sadeq’s: (i) unlawful arrest in 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.  

In the application, Al Sadeq sought to challenge Dechert’s assertion of privilege over various categories of documents. The application was made on the following bases:

• The “iniquity exception” to privilege applied. The exception applies to documents brought into existence for the purpose of furthering a criminal or fraudulent purpose,
• Dechert’s investigatory work fell outside the scope of legal advice privilege,
• Dechert’s client was not a party to the litigation and so litigation privilege should not apply in this instance, and
• Dechert had wrongfully redacted documents.
  
  

What did the court decide?

The application was dismissed by Murray J on all grounds:

The “iniquity exception”

The court rejected Al Sadeq’s argument that Dechert had applied too narrow a legal test when completing the document review. Murray J re-emphasised that as legal professional privilege is a fundamental condition on which administration of justice rests, courts will only apply the “iniquity exception” in exceptional cases. The correct test is whether a document was brought into existence for the purpose of furthering a criminal or fraudulent purpose. A test based on whether the document is generated by, or reports on, conduct falling within one of the relevant categories (those being Al Sadeq’s: (a) detention, (b) conditions in which he was detained, and (c) access to legal representation) was deemed to be too broad.

Legal advice privilege

The court refused Al Sadeq’s request for Dechert to disclose all documents created within the remit of Dechert’s investigatory work. The court held that where lawyers are engaged to conduct an investigation, it is a reasonable and fair assumption that the engagement encompasses the investigatory work, related legal advice and assistance as part of a continuum of legal service. As such, documents created in the context of Dechert’s investigatory work were privileged.

Litigation privilege

Murray J rejected Al Sadeq’s reliance on Minera Las Bambas SA v Glencore Queensland Limited [2018] EWHC 286 (Comm), in which Moulder J held that it is an “established principle” that litigation privilege can only arise in favour of a person who is a party to the litigation in question.

In Al Sadeq, it was held that litigation privilege could be asserted by a non-party with a sufficient interest in the litigation to create documents for the dominant purpose of that litigation. Murray J held:

“What is necessary (if not sufficient), in my view, in order for litigation privilege to be available to a non-party to relevant actual or prospective litigation is the non-party's having a sufficient interest in prospective or actual litigation such that it seeks legal advice and, in connection with that legal advice, communicates with third parties (directly or through its lawyer) and obtains documents to ensure that the legal advice is properly founded. The policy underlying litigation privilege clearly applies to this situation.”

Redaction of documents

Murray J rejected all claims that Dechert had wrongfully applied redactions to documents.

The judge rejected the submission that part of a document could be redacted on grounds of privilege only if it represented separate or severable communications from the unredacted parts confirming that there was no proper basis for it in law. Murray J held: “If privileged and non-privileged information are 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 grounds of privilege.”

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2023