Key Facts
- •Karam Salah Al Din Awni Al Sadeq (claimant/appellant) appeals against an order dismissing his challenge to legal professional privilege claims by Dechert LLP and its partners (defendants/respondents).
- •Al Sadeq, a Jordanian lawyer, was arrested in Dubai in 2014 and detained in Ras Al Khaimah (RAK), where he was convicted of fraud.
- •He alleges that the defendants violated his rights by using threats and unlawful methods to extract false evidence against Dr. Massaad, at the behest of the Ruler of RAK.
- •Dechert was engaged in 2013 to investigate Dr. Massaad's alleged frauds, initially by RAK IDO and later by the Ruler.
- •The appeal concerns litigation privilege, legal advice privilege, and the iniquity exception.
- •The judge dismissed Al Sadeq's application, except for one minor aspect related to prison conditions.
Legal Principles
Iniquity exception to legal professional privilege: Privilege does not apply if a document was brought into existence to further a criminal, fraudulent, or iniquitous purpose.
Various cases, including *Kuwait Airways Corporation v Iraqi Airways Co (No 6)*, *Barrowfen Properties v Patel*, *R v Cox and Railton*
Litigation privilege: Communications between a lawyer and client or third parties created for the dominant purpose of conducting existing or contemplated litigation are privileged.
*R v Central Criminal Court, ex pte Francis & Francis*, *Three Rivers District Council v Bank of England (No 6)*, *Starbev GP Ltd v Interbrew*
Legal advice privilege: Communications between a lawyer and client for the dominant purpose of giving or receiving legal advice are privileged. The *Three Rivers (No 5)* principle limits this to communications with authorized client representatives.
*Three Rivers District Council v Bank of England (No 5)*, *Three Rivers District Council v Bank of England (No 6)*, *Jet2.com v Civil Aviation Authority*
Admissibility of further evidence on appeal: The Ladd v Marshall test considers whether evidence could not have been obtained with reasonable diligence, would influence the result, and is believable.
*Ladd v Marshall*, *Hertfordshire Investments Ltd v Bubb*
Outcomes
Appeal allowed in part.
The court found a prima facie case of three iniquities (unlawful detention, inhumane conditions, denial of legal representation). The appropriate test for the iniquity exception is a balance of probabilities. The court rejected Al Sadeq's arguments on litigation privilege and the applicability of the *Three Rivers (No 5)* principle to litigation privilege.
Further evidence application refused.
The fresh evidence failed to meet the Ladd v Marshall test for admissibility on appeal.
Cross-appeal dismissed.
The court is bound by the *Three Rivers (No 5)* principle concerning legal advice privilege.