On 5 April 2023, Mr Justice Murray delivered a judgment addressing a wide range of issues concerning legal professional privilege. The issues addressed included a challenge to legal professional privilege based on the “crime fraud” or “iniquity” exception, the issue of whether the activities of a firm of solicitors engaged in investigatory work attracted legal advice privilege (“LAP”), and whether a complainant in relation to alleged criminal conduct who is not a party to criminal proceedings can claim litigation privilege (“LiP”) in respect of its or its lawyer’s communications with third parties produced for the dominant purpose of those criminal proceedings.
The judgment arose in the context of a claim brought by Mr Karam Al Sadeq, a former General Counsel at RAKIA, the sovereign wealth fund of the Emirate of Ras-Al-Khaimah in the UAE, against Dechert LLP, and three of its current or former partners, Neil Gerrard, Caroline Black and David Hughes. Mr Al Sadeq alleges that the Defendants were complicit in serious misconduct in the course of Dechert’s instruction concerning alleged frauds at RAKIA. Such misconduct included Mr Al Sadeq’s abduction from his home in Dubai and extraordinary rendition to RAK, unlawful detention, unlawful interrogation resulting in forced confessions, and detention in conditions amounting to torture and inhumane and degrading treatment.
Mr Al Sadeq brought an application seeking determination of various points of principle concerning the Defendants’ approach to claiming legal professional privilege in giving disclosure in the ongoing litigation.
As regards the iniquity challenge, Mr Justice Murray accepted the Defendants’ submission that whether or not the relevant conduct by the privilege-holder or a third party using the privilege-holder as an innocent tool was iniquitous, communications involving Dechert were not produced in furtherance of that iniquity, and thus the exception did not apply. Mr Justice Murray further held that although the Defendants accepted for the purposes of the hearing that Mr Al Sadeq had been detained in conditions amounting to a breach of Article 3 of the European Convention on Human Rights, he would not have found that Mr Al Sadeq had discharged the burden of demonstrating a very strong prima facie case of iniquity.
As for LAP, Mr Justice Murray found that the Defendants’ investigatory work arose in a “relevant legal context” such that LAP was engaged in respect of communications involving Dechert.
In relation to LiP, Mr Justice Murray held (deciding not to follow the judgment of Moulder J in Minera Las Bambas SA v Glencore Queensland Ltd  EWHC 286 (Comm) at ) that LiP could arise in favour of a non-party to the relevant litigation where the non-party has a sufficient interest in the litigation.