26/05/2023

Al Sadeq v Dechert – Murray J hands down judgment in high-profile privilege challenge

On 5 April 2023, Murray J handed down judgment in the case of Al Sadeq v Dechert LLP [2023] EWHC 795 (KB) following a wide-ranging application by the claimant challenging the defendants’ assertions of privilege.

The underlying proceedings arise out of an investigation carried out by Dechert LLP into serious wrongdoing and misappropriation of public assets alleged to have been committed by (amongst others) the claimant in Ras Al Khaimah. The claimant was ultimately convicted by the Ras Al Khaimah courts of the alleged crimes, but alleges that he was subject to serious mistreatment (amounting to torture) in the course of the investigation and sues the defendants for damages said to arise out of that alleged mistreatment.

In December 2021, a two-day hearing took place in which the claimant challenged the defendants’ assertion of privilege over numerous documents. In particular, the claimant alleged (inter alia) that (a) the case fell within the “iniquity exception” to privilege, which applies to documents brought into existence for the purpose of furthering a criminal or fraudulent purpose; (b) that the defendants appeared to have erroneously claimed legal advice privilege over documents which were not created for the dominant purpose of obtaining or giving legal advice, but were instead created for the purpose of purely investigative work to which privilege did not attach; and (c) that the defendants had not made good their claim for litigation privilege, including because they had wrongly claimed privilege over documents created for the purpose of litigation to which they were not parties. In addition, the claimant made various other more discrete challenges to the defendants’ assertion of privilege.

In his judgment, Murray J comprehensively dismissed the claimant’s application, finding for the defendants on every point argued. In relation to the “iniquity exception”, he held that the claimant had failed to demonstrate to the relevant standard of proof that the alleged “iniquities” had taken place on the facts of the case, but that in any event the defendants had applied the correct test in their disclosure exercise in considering this issue.  In relation to legal advice privilege, he held that the investigatory work carried out by the defendants was carried out in a “relevant legal context” and that documents generated in the course of it were part of the continuum of providing legal advice and assistance to the defendants’ clients, and was therefore privileged. In relation to litigation privilege, he held that there was no basis for going behind the defendants’ evidence as to when litigation was in reasonable contemplation for the purposes of claiming privilege. In addition, he rejected the claimant’s submission that litigation privilege could only be asserted by a party to the contemplated litigation, disagreeing in this respect with a previous decision of Moulder J in Minera Las Bambas SA v Glencore Queensland Limited [2018] EWHC 286 (Comm). The judge held that litigation privilege could be asserted by a non-party with a sufficient interest in the litigation to create documents for the dominant purpose of that litigation.

On 24 May 2023, the judge dismissed the claimant’s application for permission to appeal.

Philip Edey KC and Luke Pearce KC appeared on behalf of the successful defendants, instructed by Enyo.