“Though we will be providing strategic input and guidance in relation to the investigation, and providing legal professional privilege, please note that any specific legal advice we provide shall be limited to English, Georgian, UAE and US law. As the investigation progresses a more detailed scope of work will be discussed and agreed with you based on the findings during our initial work phase.”
“We will prepare a common interest agreement to be entered into by RAK IDO and RAK Development that will address the issue of legal professional privilege and its preservation in the context of the transfers noted above (including in relation to pre transfer work undertaken by third party advisers). In particular the agreement will formally reflect and confirm the common interest privilege which exists in relation to all relevant RAK parties.”
“49. I addressed the question of the iniquity exception in Allen 3: “The iniquity exception broadly states that privilege may not be asserted in relation to documents which were brought into existence for the purpose of furthering a criminal or fraudulent purpose (see Barrowfen Properties v Patel & Ors). ‘Fraud’ in this context is to be interpreted in a relatively wide sense (Barclays Bank plc v Eustice). If the alleged wrongdoing is in relation to issues to be tried, there must be a strong prima face case of criminal or fraudulent conduct before the iniquity principle will be engaged (Kuwait Airways Corporation v Iraqi Airways Company). The disclosure review team were specifically briefed on this and have been particularly vigilant to ensure that if there are any otherwise privileged documents to which the iniquity exception applies they should be disclosed. However, there are no documents in relation to which the disclosure review team considered the iniquity exception applies.” “The iniquity exception broadly states that privilege may not be asserted in relation to documents which were brought into existence for the purpose of furthering a criminal or fraudulent purpose (see Barrowfen Properties v Patel & Ors). ‘Fraud’ in this context is to be interpreted in a relatively wide sense (Barclays Bank plc v Eustice). If the alleged wrongdoing is in relation to issues to be tried, there must be a strong prima face case of criminal or fraudulent conduct before the iniquity principle will be engaged (Kuwait Airways Corporation v Iraqi Airways Company). The disclosure review team were specifically briefed on this and have been particularly vigilant to ensure that if there are any otherwise privileged documents to which the iniquity exception applies they should be disclosed. However, there are no documents in relation to which the disclosure review team considered the iniquity exception applies.” 50. The Claimant is not content with this explanation, and now seeks a direction that: “The Defendant shall, by 4pm30 July 2021 , provide in writing to the Claimants’ solicitors a further explanation of the approach taken during the Defendants’ standard disclosure review regarding the issue of whether documents or communications are subject to the crime fraud or iniquity exception to legal professional privilege. In particular, in providing such further explanation the Defendants shall confirm: a. The categories of conduct alleged in the Particulars of Claim which the Defendants treated as sufficient to engage the iniquity exception; and b. In considering the requisite iniquitous purpose, the natural person or persons whose purpose the Defendants considered in assessing whether the iniquity exception applied to documents in the Defendants’ standard disclosure.” 51. It is not clear to me that the Claimant is entitled to this information….. 52. Nonetheless, in order to try to resolve the issue without troubling the court, I list out the categories of conduct which arise out of the Claimant’s allegations which would engage the iniquity exception if documents were brought into existence for the furtherance of this purpose: (1) Kidnapping and extraordinary rendition. (2) Unlawful detention. (3) Torture and inhumane treatment. (4) Denial of legal representation. (5) Threats to the Claimant and his family. (6) Extracting false confession statements. (7) Unlawful search of the Claimant’s home and offices. (8) Attempts to hamper the preparation of the Al Sadeq Proceedings. 53. The second limb of the Claimant’s request relates to the natural person or persons whose purpose the Defendants considered in assessing whether the iniquity exception applies. Again, it is not entirely clear where this takes matters. However, I can confirm that in assessing whether the documents were brought into existence for the purposes set out above, the disclosure review team considered the purpose of both Dechert’s Clients and the Defendants.”
"… no privilege can exist in communications between Iraqi Airways Co and their previous English solicitors (let alone Iraqi Airways Co's internal documentation) in relation to the tactics of and the evidence given in the main action or in the Perjury I action where the fraud was established."
“...The present case is far from the ordinary run of cases envisaged by Glidewell LJ and is much more than a mere case where, in the words of Lord Goff [in Francis] a client gives wrong information to his solicitor which "if acted upon would lead to the commission of perjury". Here there was a widespread conspiracy to deceive the English court which was acted upon and has been proved to have led not only to perjury but to forgery and the perversion of justice on a remarkable and almost unprecedented scale.”
“42. I would therefore summarise the position thus: (1) the fraud exception can apply where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege; (2) nevertheless it can only be used in cases where there is a strong (I would myself use the words “very strong”) prima facie case of fraud, as there was in Dubai Aluminium Co Ltd v Al-Alawi[1999] 1 WLR 1964 and there was not in Chandler v Church 137 NLJ 451; where the issue of fraud is not one of the issues in the action, a prima facie case of fraud may be enough as in the Hallinan case[2005] 1 WLR 766 .”
“The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision.”
“The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
“Litigation privilege relates to communications at the stage when litigation is pending or in contemplation. It is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other, with the judge or the jury determining the winner. In such a system, each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations.”
“If [the lawyer] is employed as an attorney in any unlawful or wicked act, his duty to the public obliges him to disclose it; no private obligations can dispense with that universal one which lies on every member of society to discover every design which may be formed contrary to the laws of society to destroy the public welfare.”
"There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told."
“We must take it, after the verdict of the jury, that so far as the two defendants, Railton and Cox, were concerned, their communication with Mr Goodman was a step preparatory to the commission of a criminal offence, namely, a conspiracy to defraud.”
“Whether the circumstances brought to the notice of the Court in a particular case are sufficiently explicit to establish a prima facie case of definite fraud, either by allegation, affidavit, or in some other way, will depend on the special facts in each case… (my emphasis) … I desire to add that the refusal of the Court to strike out the statement of claim, on the application of the defendants, does not of itself establish any case of prima facie fraud, or make the case other than one of mere surmise and conjecture.”
"No privilege can be invoked so as to cover up fraud or iniquity. But this principle must not be carried too far. No person faced with an allegation of fraud could safely ask for legal advice. To do away with the privilege—at the discovery stage—there must be strong evidence of fraud—such that the court can say: 'This is such an obvious fraud that he should not be allowed to shelter behind the cloak of privilege.'"
“This passage clearly anticipates that the existence of the fraud exception should be decided upon the test of ‘probabilities’. However it seems clear that in subsequent decisions the question “whether it seems probable” has been interpreted as meaning whether the judge is satisfied that there is a prima facie case.”
“[25] It is a truism that whether material is legally privileged depends on the circumstances of the particular case. In order to defeat a claim to legal professional privilege, it will not be appropriate, for example in a case where an alibi has been raised, to seek to analyse the issues which are likely to arise in the criminal investigation or trial which gives rise to the initial privilege. To do so, as it seems to me, would be to put the cart, in the form of analysis of the issues, before the horse, that is the trial. Where, however, there is evidence of specific agreement to pervert the course of justice, which is freestanding and independent, in the sense that it does not require any judgment to be reached in relation to the issues to be tried, the court may well be in a position to evaluate whether what has occurred falls within or outwith the protection of legal professional privilege as explained in Cox and Railton. [26] In the present case, as it seems to me, the judge was fully entitled to conclude that the material here sought had reached the entirely innocent claimants from his client and/or others, whose intention, it could be inferred, was to further their continuing purpose of perverting the course of justice.”
“As to alibi cases, an example canvassed in the course of argument on both sides, Mr Mitchell submitted that it is unlikely until the trial has taken place that there would be material sufficient to justify an application for a Special Procedure Order. But where, as here, there is freestanding independent material, the police in pursuance of their general duty in relation to the prevention of crime cannot be expected to stand by.”
“11. The legal requirements of a claim to litigation privilege may be summarised as follows: (1) The burden of proof is on the party claiming privilege to establish it – see, for example, West London Pipeline and Storage v Total UK [2008] 2 CLC 258 at [50]. (2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in a witness statement are not determinative and are evidence of a fact which may require to be independently proved. The court will scrutinise carefully how the claim to privilege is made out and the witness statements should be as specific as possible – see, for example, Sumitomo Corporation v Credit Lyonnais Rouse Ltd (14 February 2001 ) at [30] and [39] (Andrew Smith J); West London Pipeline and Storage Ltd v Total UK Ltd[2008] EWHC 1729 (Comm) at [52], [53], [86] (Beatson J); Tchenguiz v Director of the SFO[2013] EWHC 2297 (QB) at [52] (Eder J). (3) The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation – see, for example, United States of America v Philip Morris Inc[2004] EWCA Civ 330 at [68]; Westminster International v Dornoch Ltd[2009] EWCA Civ 1323 at paras [19] – [20]. As Eder J stated in Tchenguiz at [48(iii)]: "Where litigation has not been commenced at the time of the communication, it has to be 'reasonably in prospect'; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility". (4) It is not enough for a party to show that proceedings were reasonably anticipated or in contemplation; the party must also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose, this test will not be satisfied: Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA[1992] BCLC 583 , 589-590 (cited in Tchenguiz at [54]-[55]); West London Pipeline and Storage Ltd v Total UK Ltd at [52]. 12. In relation to the Court's approach to the assessment of evidence in support of a claim for privilege, it has been stated that it is necessary to subject the evidence "to "anxious scrutiny" in particular because of the difficulties in going behind that evidence" – per Eder J in Tchenguiz at [52]. "The Court will look at 'purpose' from an objective standpoint, looking at all relevant evidence including evidence of subjective purpose" – ibid. 48(iv). Further, as Beatson J pointed out in the West London Pipeline case at [53], it is desirable that the party claiming such privilege "should refer to such contemporary material as it is possible to do without making disclosure of the very matters that the claim for privilege is designed to protect". 13. As was further stated by Beatson J in the West London Pipeline case at [86]: "(3) It is, however, difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. The affidavit is conclusive unless it is reasonably certain from: (a) the statements of the party making it that he has erroneously represented or has misconceived the character of the documents in respect of which privilege is claimed: Frankenstein v Gavin's House to House Cycle Cleaning and Insurance Co, per Lord Esher MR and Chitty LJ; Lask v Gloucester Health Authority; (b) the evidence of the person who or entity which directed the creation of the communications or documents over which privilege is claimed that the affidavit is incorrect: Neilson v Laugharane (the Chief Constable's letter), Lask v Gloucester HA (the NHS Circular), and see Frankenstein v Gavin's House to House Cycle Cleaning and Insurance Co, per A L Smith LJ; (c) the other evidence before the court that the affidavit is incorrect or incomplete on the material points: Jones v Montivedeo Gas Co; Birmingham and Midland Motor Omnibus Co v London and North West Railway Co; National Westminster Bank plc v Rabobank Nederland.” (1) The burden of proof is on the party claiming privilege to establish it – see, for example, West London Pipeline and Storage v Total UK [2008] 2 CLC 258 at [50]. (2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in a witness statement are not determinative and are evidence of a fact which may require to be independently proved. The court will scrutinise carefully how the claim to privilege is made out and the witness statements should be as specific as possible – see, for example, Sumitomo Corporation v Credit Lyonnais Rouse Ltd (14 February 2001 ) at [30] and [39] (Andrew Smith J); West London Pipeline and Storage Ltd v Total UK Ltd[2008] EWHC 1729 (Comm) at [52], [53], [86] (Beatson J); Tchenguiz v Director of the SFO[2013] EWHC 2297 (QB) at [52] (Eder J). (3) The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation – see, for example, United States of America v Philip Morris Inc[2004] EWCA Civ 330 at [68]; Westminster International v Dornoch Ltd[2009] EWCA Civ 1323 at paras [19] – [20]. As Eder J stated in Tchenguiz at [48(iii)]: "Where litigation has not been commenced at the time of the communication, it has to be 'reasonably in prospect'; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility". (4) It is not enough for a party to show that proceedings were reasonably anticipated or in contemplation; the party must also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose, this test will not be satisfied: Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA[1992] BCLC 583 , 589-590 (cited in Tchenguiz at [54]-[55]); West London Pipeline and Storage Ltd v Total UK Ltd at [52]. "(3) It is, however, difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. The affidavit is conclusive unless it is reasonably certain from: (a) the statements of the party making it that he has erroneously represented or has misconceived the character of the documents in respect of which privilege is claimed: Frankenstein v Gavin's House to House Cycle Cleaning and Insurance Co, per Lord Esher MR and Chitty LJ; Lask v Gloucester Health Authority; (b) the evidence of the person who or entity which directed the creation of the communications or documents over which privilege is claimed that the affidavit is incorrect: Neilson v Laugharane (the Chief Constable's letter), Lask v Gloucester HA (the NHS Circular), and see Frankenstein v Gavin's House to House Cycle Cleaning and Insurance Co, per A L Smith LJ; (c) the other evidence before the court that the affidavit is incorrect or incomplete on the material points: Jones v Montivedeo Gas Co; Birmingham and Midland Motor Omnibus Co v London and North West Railway Co; National Westminster Bank plc v Rabobank Nederland.”
“The conclusion to be drawn from the trilogy of 19th century cases to which I have referred and the qualifications expressed in the modern case-law is that communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”
"Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection."
“Subject to subsection (2) below, in this Act “items subject to legal privilege” means— … (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.”
“It is essential to bear in mind that the privilege is the privilege of the litigant, accorded to him in order that he may be protected in preparing his case, and not the privilege of his witnesses as such. The litigant can waive the privilege if he chooses, and if he does so the proofs of his witnesses can be shown to the opposing party without the witnesses having any ground for complaint. What is being sought here is, in effect, to extend the umbrella of the protection which the privilege gives the company to the defendant, who is, on the hypothesis that he is the author of the libel, to be looked at for the purpose of this application as a proposed witness on behalf of the company. In this capacity not only has he no privilege of his own, but he is under no duty to assert the right of the company to resist the production of any documents.”
“We discussed how we might proceed going forward and in particular whether it would be appropriate that Dechert formally instruct you….so as to attempt to cover any work product under legal professional privilege. With this in mind we have cced the client and Gavin Watson [a Dechert partner] for their views.”
“2. The Defendants shall …….identify the persons whom they contend were authorised at the material times to seek or receive legal advice on behalf of their clients, RAK Development LLC and RAK IDO, and the reasons why they contend those persons were so authorised. 3. The Defendants shall not be entitled to withhold from inspection any documents or parts thereof on grounds of legal advice privilege, which involve: 3.1 Communications created for the dominant purpose of the Defendants’ investigatory work; 3.2 Communications between the Defendants and representatives of their clients who are not authorised to seek or receive legal advice; Save that the Defendants shall be entitled to withhold from inspection on grounds of legal advice privilege documents or parts of documents which comprise secondary evidence of separate communications which are themselves subject to legal advice privilege.” 3.1 Communications created for the dominant purpose of the Defendants’ investigatory work; 3.2 Communications between the Defendants and representatives of their clients who are not authorised to seek or receive legal advice; (4) Paragraph 7 of the Draft Order sought an order that there be a re-review of disclosure, to be conducted by counsel, insofar as any documents had been withheld where that was not permitted in accordance with paragraphs 2 and 3. The Judgment