“… to act as legal counsel to [RAK IDO] in connection with an investigation into certain historical transactions carried out by subsidiary companies controlled by [RAKIA], on the instruction of Dr. Khater Massaad, particular in relation to activities and investments in Georgia and India, together with any other transactions that are identified by the task force appointed by the IDO (‘IDO Task Force’) during the course of this mandate … .”
“Our initial scope of work shall be as set out in Schedule 2. 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 works will be discussed and agreed with you based on the findings during our initial work phase.”
“… assume unless and until notified to the contrary that all members of the IDO Task Force are authorised to instruct us in relation to all aspects of our work undertaken on behalf of IDO.”
“The purpose of this letter is to confirm our continued instructions, and to use this opportunity to refresh and update both the description of the matters on which we have been, and will continue to be, working and to use this opportunity to set out a revised and simplified fee arrangement that will be applicable to all our work. Nothing in this letter shall be intended to waive (or shall be construed as having waived) the legal professional privilege attaching to all of our investigative, advisory or litigious work (including without limitation any work produced contained in reports, communications, documents or any other form whatsoever, and whether electronic or physical) previously undertaken for [RAK IDO] (or its subsidiaries), including without limitation any services in relation to those matters provided by third parties on our behalf. Neither does [RAK IDO] (or its subsidiaries) waive privilege over any confidential communications with, or documents prepared by or provided to, Dechert (or any third party providers) which have been (or will be) shared with RAK Development, as successor client. 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.”
“… a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.”
“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 confident 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. … But it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established.”
“ … Legal advice is frequently sought or given in connection with current or contemplated litigation. But it may equally well be sought or given in circumstances and for purposes that have nothing to do with litigation. If it is sought or given in connection with litigation, then the advice would fall into both of the two categories. …”
“Despite the common misperception that litigation privilege covers all communications once litigation is in contemplation, litigation privilege has no application to communications between lawyer and client: these will always fall within the realm of legal advice privilege.”
“… a review of the cases and textbooks cited to me shows that it would not be unreasonable for a lawyer to approach claims to privilege on the basis that the litigation privilege and legal advice privilege overlap. Some textbook authors say that they are mutually exclusive while others do not treat the two concepts that way. Compare The Law of Privilege, 2nd ed (2011), ed Bankim Thanki QC, paras 1-11 to 1-13, (citing Waugh v British Railways Board[1980] AC 521 , In re L[1997] AC 16 and the Three Rivers District Council (No 6) case with Hollander, Documentary Evidence, 12th ed (2015), para 18-01. The textbook Passmore, Privilege, 3rd ed (2013) points out the clear distinction between the two drawn by Lord Edmund-Davies in Waugh v British Railways Board but notes that others have not drawn such a clear distinction, referring to Lord Scott of Foscote in the Three Rivers District Council (No 6) case, para 27 and other judgments. …”
“86. … (1) The burden of proof is on the party claiming privilege to establish it … . A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power of the court to inspect the documents, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect … . (2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved … . (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 … . (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 … . (c) the other evidence before the court that the affidavit is incorrect or incomplete on the material points … . (4) Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: (a) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection … . (b) It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory … . (c) It may inspect the documents … . Inspection should be a solution of last resort, in part because of the danger of looking at documents out of context at the interlocutory stage. It should not be undertaken unless there is credible evidence that those claiming privilege have either misunderstood their duty, or are not to be trusted with the decision making, or there is no reasonably practical alternative. (d) At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets … . However, the weight of authority is that cross-examination may not be ordered in the case of an affidavit of documents … . In cases where the issue is whether the documents exist … the existence of the documents is likely to be an issue at the trial and there is a particular risk of a court at an interlocutory stage impinging on that issue.” (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 … . (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 … . (c) the other evidence before the court that the affidavit is incorrect or incomplete on the material points … . (a) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection … . (b) It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory … . (c) It may inspect the documents … . Inspection should be a solution of last resort, in part because of the danger of looking at documents out of context at the interlocutory stage. It should not be undertaken unless there is credible evidence that those claiming privilege have either misunderstood their duty, or are not to be trusted with the decision making, or there is no reasonably practical alternative. (d) At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets … . However, the weight of authority is that cross-examination may not be ordered in the case of an affidavit of documents … . In cases where the issue is whether the documents exist … the existence of the documents is likely to be an issue at the trial and there is a particular risk of a court at an interlocutory stage impinging on that issue.”
“… I do not accept that legal advice privilege only extends to communications with individuals within Dechert’s Clients who were authorised to seek or receive legal advice on behalf of Dechert’s Clients.”
“1. The Defendants shall not be entitled to withhold from inspection any documents or parts thereof which have been generated by or report on the following categories of conduct: 1.1 The detention of Mr Al Sadeq in Dubai on5 September 2014 , his rendition to Ras-Al-Khaimah and subsequent detention in the following locations (as defined in the Amended Particulars of Claim): (a) GHQ; (b) Al Barirat; (c) The Prison Villa; (d) RAK Central Prison. 1.2 The conditions in which Mr Al Sadeq was detained in the locations identified at paragraph 1.1 above; 1.3 Mr Al Sadeq’s access to legal representation during his detention in Ras-Al-Khaimah.” 1.1 The detention of Mr Al Sadeq in Dubai on5 September 2014 , his rendition to Ras-Al-Khaimah and subsequent detention in the following locations (as defined in the Amended Particulars of Claim): (a) GHQ; (b) Al Barirat; (c) The Prison Villa; (d) RAK Central Prison. 1.2 The conditions in which Mr Al Sadeq was detained in the locations identified at paragraph 1.1 above; 1.3 Mr Al Sadeq’s access to legal representation during his detention in Ras-Al-Khaimah.”
“Probably the most important and well-known exception to legal professional privilege is the crime/fraud exception. The exception provides that there is no privilege in documents or communications which are themselves part of a crime or fraud. As set out further below, there has been a tendance more recently to refer to this principle as the ‘iniquity exception’ in the light of certain cases which arguably suggest that the type of conduct required for the exception to apply may fall short of crime or fraud.”
“The reason on which the [privilege] rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not ‘come into the ordinary scope of professional employment.’ ”
“The principle is not confined to criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice.”
“… legal professional privilege does not arise in respect of documents which are in themselves part of a criminal or unlawful fraudulent proceeding or, if it be different, communications made in order to get advice for the purpose of carrying out a fraud, and that this is so whether the solicitor was or was not ignorant of the fact that he is being used for that purpose.”
“76. Where is the line to be drawn between ‘the ordinary run of cases’ in which privilege attaches to communications with a solicitor by a client with a view to advancing a knowingly false case, and the conduct in Kuwait Airways (No. 6)? The answer lies, in my view, in a focus on three aspects of legal professional privilege and the iniquity exception. The first is that legal professional privilege attaches to communications between solicitor and client which are confidential. The quality of confidence is a prerequisite to the privilege, because it is the protection of such confidence which forms the bedrock of the rationale for the privilege as essential to the administration of justice. Secondly, communications made in furtherance of an iniquitous purpose negate the necessary condition of confidentiality. It is this which prevents legal professional privilege attaching to communications for such purpose. Thirdly, the reason that communications in furtherance of iniquity lack the necessary quality of confidentiality is that communications can only attract the confidence if they are made in the ordinary course of professional engagement of a solicitor. It is the absence or abuse of the normal relationship which arises where a solicitor is rendering a service falling within the ordinary course of professional engagement which negates the necessary confidentiality and therefore the privilege. The ‘ordinary run of cases’ involve no such abuse: a solicitor instructed to defend his client of a criminal charge performs his proper professional role in advancing what the client knows to be an untrue case. … 93. I would conclude, therefore, that the touchstone is whether the communication is made for the purposes of giving or receiving legal advice, or for the purposes of the conduct of actual or contemplated litigation, which is advice or conduct in which the solicitor is acting in the ordinary course of the professional engagement of a solicitor. If the iniquity puts the advice or conduct outside the normal scope of such professional engagement, or renders it an abuse of the relationship which properly falls within the ordinary course of such an engagement, a communication for such purpose cannot attract legal professional privilege. In cases where a lawyer is engaged to put forward a false case supported by false evidence, it will be a question of fact and degree whether it involves an abuse of the ordinary professional engagement of a solicitor in the circumstances in question. In the ‘ordinary run’ of criminal cases the solicitor will be acting in the ordinary course of professional engagement, and the client doing no more than using him to provide the services inherent in the proper fulfilment of such engagement, even where in denying the crime the defendant puts forward what the jury finds to be a bogus defence. But where in civil proceedings there is deception of the solicitors in order to use them as an instrument to perpetrate a substantial fraud on the other party and the court, that may well be indicative of a lack of confidentiality which is the essential prerequisite for the attachment of legal professional privilege. The deception of the solicitors, and therefore the abuse of the normal solicitor/client relationship, will often be the hallmark of iniquity which negates the privilege.”
“36. … courts will be cautious about ordering disclosure or inspection of … documents [that further a fraud or criminal purpose]. That caution has two aspects: (1) it may be unfair to a defendant to make such an order if all that is shown on the evidence is a prima facie case which may turn out on full investigation to be incorrect and (2) it may be unfair in what Glidewell LJ in the Snaresbrook case[1988] QB 532 , 538 called the ordinary run of cases (such as cross−allegations of assault or drivers falsely saying they were driving on the correct side of the road) to order disclosure and inspection merely because communications with a party's solicitors ‘are untrue and would, if acted upon, lead to the commission of the crime of perjury’ – per Lord Goff of Chieveley in R v Central Criminal Court, Ex p Francis & Francis[1989] AC 346 , 397. 37. These two reasons for caution are, of course, somewhat interdependent. If all one has is disputed versions of events, it will be difficult to say that there is even a prima facie case of fraud. This will be particularly so if the disputed version of events is the very same issue that is to be tried in the proceedings. If, however, the evidence of crime or fraud is free−standing and independent and particularly if its evaluation ‘does not require any judgment to be reached in relation to the issues to be tried’ (per Rose LJ in the Hallinan case[2005] 1 WLR 766 , 771) it may be perfectly possible, even on a prima facie case basis, to decide whether the fraud exception applies. … 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 in which the issue of fraud is one of the issues in the action 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 NLF 451; (3) 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 .”
“… criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege.”
“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; … 3.3 Communications between the Defendants or the representatives of their clients (whether or not authorised to seek or receive legal advice and conduct litigation) and third parties. 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; … 3.3 Communications between the Defendants or the representatives of their clients (whether or not authorised to seek or receive legal advice and conduct litigation) and third parties. 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.”
“In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and the client. … Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.”
“4. The Defendants shall by 4pm on […] identify the persons who they contend were authorised to conduct litigation on behalf of their clients, RAK Development LLC and [RAK IDO] (for the purposes of the litigations set out in the Litigation Privilege Table at paragraph 36 of Allen 3), and the reasons why they contend those persons were so authorised. 5. The Defendants shall not be entitled to withhold from inspection on grounds of litigation privilege documents or parts thereof on the grounds that such communications: 5.1 Were created for the dominant purpose of the litigation(s) set out in the table at paragraph 36 of Allen 3. 5.2 Are communications between persons not identified as authorised representatives of Dechert’s clients pursuant to paragraph 4 of this Order, and third parties. 5.3 [Alternative to para 5.1] Were created for the dominant purpose of actual or anticipated criminal proceedings in RAK or other jurisdictions; 5.4 [Alternative to para 5.1] Were created for the dominant purpose of RAK criminal proceedings against Mr Al Sadeq prior to19 February 2015 ” 5.1 Were created for the dominant purpose of the litigation(s) set out in the table at paragraph 36 of Allen 3. 5.2 Are communications between persons not identified as authorised representatives of Dechert’s clients pursuant to paragraph 4 of this Order, and third parties. 5.3 [Alternative to para 5.1] Were created for the dominant purpose of actual or anticipated criminal proceedings in RAK or other jurisdictions; 5.4 [Alternative to para 5.1] Were created for the dominant purpose of RAK criminal proceedings against Mr Al Sadeq prior to19 February 2015 ”
“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly be conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.”
“… as you have no right to see your adversary’s brief, you have no right to see that which comes into existence as the materials for the brief.”
“The requirement that litigation be ‘reasonably in prospect’ is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.”
“53. Thus, affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, should be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect. On the need for specificity in such affidavits, see for example, Andrew Smith J in Sumitomo Corp v Credit Lyonnais Rouse Ltd (2001) 151 NLJ 272 at [39], referred to without criticism by the Court of Appeal[2002] 1 WLR 479 at [28], although the court did not (see [81]) consider the criticisms of the affidavit in that case were justified.”
“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 be made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.”
“… 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.”
“The second category of legal professional privilege is wider than the first, but arises only when litigation is in prospect or pending. From that moment on, any communications between the client and his solicitor or agent, or between one of them and a third party, will be privileged if they come into existence for the sole or dominant purpose of either giving or getting legal advice with regard to the litigation or collecting evidence for use in the litigation. This is the basis for claiming privilege for correspondence with witnesses of fact or experts, and proofs, reports or documents generated by them. The principle is that a party or potential party should be free to seek evidence without being obliged to disclose the result of the searches to the other side. …”
“Litigation privilege can only arise in favour of someone who was a party (or in respect of whom there was a reasonable prospect they would be a party) to the litigation which is said to give rise to the privilege.”
“… for the dominant purpose of use in litigation that, at the time the communication is made … is litigation in which the [person] is, or reasonably anticipates becoming, a party … .”
“So far as policy is concerned, it is clear that the existence and application of the rule respecting LPP is one of policy which applies equally to civil and criminal proceedings and is applicable whether or not the party relying upon it is or is not a party to, or witness in, the proceedings.”
“6. In applying redactions to disclosed documents made available for inspection, the Defendants shall: 6.1 Not be entitled to withhold from inspection parts of documents on grounds of legal professional privilege or otherwise which do not represent separate or severable communications from the unredacted parts. 6.2 Ensure that, in applying the dominant purpose test for legal advice privilege or litigation privilege, any parts of documents which are properly severable and have been made available for inspection in redacted form satisfy the dominant purpose test. 6.3 Ensure that, where parts of documents have been made available for inspection on the basis that they contain ‘primary material’ (as defined at paragraphs 38-40 of Allen 3), that all such material is made available for inspection, and that the meaning and context of such material is not obscured by any redactions applied.” 6.1 Not be entitled to withhold from inspection parts of documents on grounds of legal professional privilege or otherwise which do not represent separate or severable communications from the unredacted parts. 6.2 Ensure that, in applying the dominant purpose test for legal advice privilege or litigation privilege, any parts of documents which are properly severable and have been made available for inspection in redacted form satisfy the dominant purpose test. 6.3 Ensure that, where parts of documents have been made available for inspection on the basis that they contain ‘primary material’ (as defined at paragraphs 38-40 of Allen 3), that all such material is made available for inspection, and that the meaning and context of such material is not obscured by any redactions applied.”
“9. The Defendants shall by 4pm on […]: … 9.2 Disclose and make available for inspection documents containing or evidencing the advice received by Mr Gerrard and Ms Black during the period12 August 2015 [to]30 August 2015 , by which it is alleged to have become apparent to them that a settlement not involving a conviction of Mr Al Sadeq was impossible due to Article 106 of the Federal Criminal Law. … .”