Sadeq v Dechert (2024) EWCA Civ 28 raises a number of important points of law about the scope of LPP, both litigation privilege and legal advice privilege, and the so called “iniquity exception” applicable to both, in a 243 paragraph Judgment, Popplewell LJ addressed, amongst other matters, the merits threshold test for the iniquity exception.
He said:-
“52. I start with a number of uncontroversial aspects of the iniquity exception. As is well-known, legal professional privilege encompasses both legal advice privilege and litigation privilege. Broadly speaking, legal advice privilege 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; litigation privilege attaches 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 … Where legal professional privilege exists, it is inviolate: there is no balancing exercise to be undertaken between the interest in maintaining privilege and competing interests in disclosure of the communications … Legal professional privilege was described by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 18 [2003] 1 AC 563 at [7] as a fundamental human right, which the European Court of Human Rights has held is part of the right to privacy protected by article 8 ECHR.
53. There is a principle that privilege does not exist if the document comes into existence in relation to a fraud, crime or other iniquity… a claim for legal professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud …
54. The exception applies to criminal cases … and civil cases … It applies equally to legal advice privilege and litigation privilege…
55. The principle is not confined to fraudulent or 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 … Whilst formerly often referred to as the fraud exception, it is now most commonly referred to as the iniquity exception.
56. It is not confined to cases in which the legal adviser is party to, or aware of, the iniquity. The relevant iniquitous purpose is that of the client, or if the client is being used as a tool for the iniquity by a third party, that of the third party …
57. The principled juridical basis for the exception is that it is a necessary ingredient of legal professional privilege that the communication should be confidential; and that the iniquity exception applies where and because the iniquity deprives the communication of the necessary quality of confidence … It is therefore an exception in the sense of something which prevents the privilege arising in the first place, not an exception in the sense of a disapplication of existing privilege.
58. Communications between a lawyer and client, or with third parties, are confidential if they take place in the usual course of the professional engagement of such a lawyer, notwithstanding that the engagement may concern an iniquity. This is why the iniquity exception does not apply to the “ordinary run of cases” … Such privilege is not prevented from attaching merely because the solicitor is engaged to conduct litigation by putting forward an account of events which the client knows to be untrue, and which therefore involves a deliberate strategy to mislead the other party and the court. and to commit perjury … Accordingly the touchstone in distinguishing such cases from those where the exception applies is whether the iniquity puts the conduct outside the normal scope of such professional engagement or is an abuse of the relationship which falls within the ordinary course of such engagement …”
He continued, at paragraph 63:-
“63. I have reached the conclusion that save in exceptional cases, the merits threshold for the iniquity exception is a balance of probabilities test: the existence of the iniquity must be more likely than not on the material available to the decision maker, whether that be the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arises; and that in an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This, in my view, is what the cases speaking of a prima facie case have had in mind, and what is meant by a prima facie case in this context (whatever it may mean in other contexts).
64. That conclusion is dictated by principle and consistent with, and to some extent supported by … authorities at appellate level …
65. Application of the iniquity exception involves the balance of two competing public policy considerations. On the one hand, there are the policy considerations which underlie the existence of legal professional privilege …
68. On the other hand there is a strong public interest in iniquity being uncovered …
69. In the context of litigation, this is reinforced by the imperative of the parties being able to adduce before the court all relevant evidence so that the dispute is determined fairly and correctly. If relevant evidence is concealed, there is a risk of injustice …
72. … a test of anything less than a balance of probabilities would be inconsistent with principle. The test should … be whether the iniquity exists on the balance of probabilities on the material available to the decision maker, whether party, legal adviser or court, at the time the decision is made, save in exceptional circumstances …”
“108. The merits threshold for the existence of an iniquity which prevents legal professional privilege arising, whether legal advice privilege or litigation privilege, is a prima facie case, which means that on an assessment of the material available to the decision maker, whether that be the party or its legal adviser conducting disclosure, or the court, it appears more likely than not on a balance of probabilities that such iniquity exists. In an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This is subject to the proviso that there might exist exceptional circumstances which could justify a court taking the view that a balance of harm analysis has a part to play.”