Court of Appeal Clarifies Legal Professional Privilege and Iniquity Exception in Karam Salah al Din Awni al Sadeq v Dechert LLP & Ors.

Citation: [2024] EWCA Civ 28
Judgment on

Introduction

The case of Karam Salah al Din Awni al Sadeq v Dechert LLP & Ors presents a thoughtful analysis and application of legal professional privilege, specifically litigation privilege and legal advice privilege, as well as the iniquity exception to these privileges. This article distills the key topics discussed in the Court of Appeal’s decision, aiming to facilitate legal professionals’ understanding of the principles applied.

Key Facts

Mr. Karam Salah al Din Awni al Sadeq, the appellant, alleged that Dechert LLP and its partners, collectively the defendants, violated his rights by using unlawful methods to force him to provide evidence, including false evidence, against certain individuals in politically motivated trials. Main issues arose around claims of legal professional privilege made by the defendants over certain documents, which Mr. Al Sadeq challenged. The appeal and cross-appeal revolved primarily around establishing the extents of legal advice privilege and litigation privilege, and whether the iniquity exception applied.

The court reaffirmed that legal professional privilege, covering both legal advice and litigation privileges, is fundamental and inviolate, save for the iniquity exception, which applies when there’s a prima facie case that a document was created as part of or to further an iniquitous act. The merits threshold was set to balance probabilities, meaning the iniquity must be more likely than not on available material. The court clarified that the exception includes documents revealing the iniquity, not just those intended to further it.

Litigation Privilege

The scope of litigation privilege was debated, with the key outcome being that litigation privilege can extend to documents and communications made in contemplation of litigation to which the privilege holder is not a party. The court rejected an overly narrow interpretation, emphasizing the principle extends to any litigation reasonably contemplated with the relevant communication’s dominant purpose being conducting that litigation.

For legal advice privilege, the court maintained that confidentiality is crucial and that communications must be in a legal context whose dominant purpose is seeking or receiving legal advice. The Three Rivers (No 5) principle, contentious yet binding, was held not applicable to litigation privilege, as the contexts and rationales for both privileges differ.

Outcomes

The court directed a re-review of documents for disclosure under the iniquity exception, rejected the extension of the Three Rivers (No 5) principle to litigation privilege, and confirmed that litigation privilege can apply to non-parties under certain conditions. Legal advice privilege did not apply to all investigatory work as a blanket rule, and each communication’s context must be evaluated individually.

Conclusion

The Court of Appeal’s decision in Karam Salah al Din Awni al Sadeq v Dechert LLP & Ors underscores the robust protection afforded by legal professional privilege while acknowledging the iniquity exception’s role in ensuring transparency and justice where improper conduct occurs. The ruling also clarifies the extent to which litigation privilege can extend to non-parties, providing a broader protective scope than previously recognized and reinforcing the principle that the privilege reflects the importance of confidential legal communications regardless of a party’s status in the proceedings. Legal professionals must meticulously assess the context of each communication when claiming privilege, ensuring adherence to the established legal framework.