29 April 2024

April 2024 Business Litigation Report

Legal professional privilege is a longstanding and fundamental principle of English law, and yet it finds itself before the Courts with such frequency that it is also one that is continually evolving.
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Privilege Under English Law – the Lay of the Land following Al Sadeq v Dechert LLP


Legal professional privilege is a longstanding and fundamental principle of English law, and yet it finds itself before the Courts with such frequency that it is also one that is continually evolving.

Most recently, on 24 January 2024, the Court of Appeal of England and Wales handed down its judgment in Al Sadeq v Dechert LLP and Others [2024] EWCA Civ 28. That decision considers a number of key aspects of the English law position on legal professional privilege, which will usually arise in the following two circumstances: 

  • Legal advice privilege that applies to "communications between a lawyer and its client for the sole or dominant purpose of giving or receiving legal advice, and documents which would reveal the contents of such communications"; and
  • Litigation privilege that applies to "communications between a lawyer and its client or third parties which are brought into existence for the sole or dominant purpose of use in the conduct of existing or contemplated adversarial litigation."

The judgment considers certain key elements of the criteria for each of these categories of privilege to apply, including (a) the need to define a "client" for the purposes of litigation privilege, and (b) the circumstances in which investigatory work will attract legal advice privilege.

Importantly, the Court also:

  • Confirmed that parties (including funders and insurers) are able to assert litigation privilege in relation to anticipated or actual proceedings to which they themselves are not parties; and
  • Considered the scope of the so-called "iniquity exception" to privilege, ultimately finding that the threshold for establishing that the exception applies may in fact be higher than many had previously understood to be the case.

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Background Facts

The Claimant, Mr. Karam Salah Al Din Awni Al Sadeq ("Mr. Al Sadeq"), had, between 2008 and his resignation in 2012, held various positions, from legal advisor to Deputy CEO, within the Ras Al Khaimah Investment Authority ("RAKIA"). 

RAKIA claimed that, in around 2012, it had discovered that its CEO throughout that time, Dr. Khater Massaad ("Dr. Massaad"), had perpetrated "systematic and wide ranging fraud" against RAKIA and related entities, resulting in losses in the hundreds of millions of dollars.

Mr. Al Sadeq was arrested in connection with that fraud in September 2014 and was subsequently convicted and imprisoned in Ras Al Khaimah. He maintains his innocence and claims that his wrongful conviction was politically motivated.

The First Defendant, Dechert LLP ("Dechert") was the law firm engaged in 2013 to investigate the suspected fraud by Dr. Massaad. The Second to Fourth Defendants were former Dechert partners who were involved in the investigation (the "Former Partners"). It was Dechert's investigation that resulted in the proceedings being brought against Mr. Al Sadeq, and that resulted in numerous other sets of civil and criminal proceedings against various individuals, in numerous jurisdictions.

There were various issues arising from Dechert's engagement including, crucially for privilege purposes, the identities of the lawyer and the client. Although these in themselves can be complex and fact-sensitive issues, it suffices to say that, in this case, the Court found that the lawyer was the "global law firm known as Dechert, including as necessary all its constituent parts and local offices." The client, in relation to the events which formed subject of the appeal, was Ras Al Khaimah Development LLC ("RAK Development") (to whom responsibility for various matters, including the investigation, had been transferred from another RAK entity).

The High Court Proceedings

Mr. Al Sadeq's claim in the English High Court was, in summary, that Dechert had used various unlawful methods, including threats and intimidation, to force him to give evidence (some of which was false) to assist them in building a case against Dr. Massaad and his alleged coconspirators, at the behest of the ruler of Ras Al Khaimah, Sheikh Suad bin Saqr al-Qasimi (the "Ruler"). Mr. Al Sadeq claimed that mistreatment, which amounted to a breach of his human rights under UAE and international law, had caused him physical, emotional, psychological, and moral harm, as well as financial loss and damage, and sought compensation in relation to the same. 

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Originally Published by LARGE BUSINESSES

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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