On 24 January 2024, the Court of Appeal handed down a significant judgment addressing important issues in the law of legal professional privilege and, in particular, the scope and application of the “iniquity exception” to privilege and the availability of litigation privilege to non-parties to actual or anticipated litigation.
In Al Sadeq v Dechert & Ors, the Claimant, Mr Al Sadeq, brought proceedings against Dechert and three of its former partners under UAE law causes of action, alleging serious wrongdoing including complicity in his unlawful detention and rendition from Dubai to the Emirate of Ras-Al-Khaimah, UAE, detention in conditions amounting to torture and inhuman or degrading treatment, and denial of legal representation. Mr Al Sadeq claims that those wrongs were committed against him in the context of a global investigation led by Dechert LLP instructed by RAK Government entities, the purpose of which (Mr Al Sadeq contends) was to enable the Ruler of Ras-Al-Khaimah, Sheikh Saud bin Saqr Al Qasimi, to pursue a dispute with a former business associate, Dr Massaad, in which Mr Al Sadeq became collateral damage.
The Court of Appeal (overturning the decision of Murray J at first instance on this point) held that Mr Al Sadeq had established a prima facie case of three categories of iniquitous conduct: (1) unlawful detention, (2) detention in conditions amounting to torture and inhuman or degrading treatment, and (3) denial of access to legal representation. The Court of Appeal further held that documents that “report on” or “reveal” those three iniquities would fall within the scope of the iniquity exception to legal professional privilege, and ordered the Defendants to conduct a re-review of their standard disclosure to determine whether any such documents had been improperly withheld. In reaching this conclusion, the Court of Appeal clarified that the test of whether a prima facie case of iniquity is established requires proof on the balance of probabilities in light of the material available at the time, and (contrary to statements in another Court of Appeal judgment, Kuwait Airways Corporation v Iraqi Airways Co (No 6)  EWCA Civ 286) there is not a higher standard in cases where the iniquity comprises part of the issues in the action.
Separately, in relation to litigation privilege, the Court of Appeal (upholding Murray J on this point) held that, contrary to the views expressed in several textbooks and in one first instance authority (Minera Las Bambas SA v Glencore Queensland Ltd  EWHC 286 (Comm)), litigation privilege can arise in favour of non-parties to litigation where the requirements of actual or anticipated litigation and dominant purpose are met (as the Defendants contended was the case regarding communications concerning criminal litigation in Ras-Al-Khaimah, to which their clients were non-parties).