Can non-parties to proceedings claim litigation privilege?
In Al Sadeq v Dechert LLP & Ors [2023] EWHC 795 (KB) the claimant applied to the High Court to challenge the defendant’s claims to privilege over various documents. The grounds of challenge included that litigation privilege did not apply as the defendant’s client had not been party to the relevant litigation: the defendant had created documents in connection with criminal proceedings to which its client was not a party. The Court held that, in some circumstance, litigation privilege could be claimed by a non-party to proceedings, provided they have a sufficient interest in the litigation.
Background
Dechert LLP (the Firm) was instructed to carry out an investigation into alleged frauds and misappropriation of public assets at the sovereign wealth fund of the Emirate of Ras-Al-Khaimah (RAK): Ras Al Khaimah Investment Authority (RAKIA). The Firm’s client was the Investment and DevelopmentOffice of the Government of RAK and then later, RAK Development LLC. As a result of the investigation, the former Deputy Chief Executive Officer of RAKIA (the Claimant) was tried and convicted of fraud in the RAK courts, receiving a sentence of eight years imprisonment. The Firm’s client was not a party to those criminal proceedings.
The Claimant brought proceedings against the Firm and three of its partners alleging that they had committed serious wrongs against him during the course of their work on the investigation, including being responsible for his unlawful interrogation and his unlawful detention.
In the current application, the Claimant challenged the Firm’s claims to legal professional privilege over various documents on a number of grounds. This briefing focuses on the third ground, that litigation privilege did not apply to documents created by the Firm for its investigation as the Firm’s client was not party to the relevant litigation (i.e., the criminal proceedings against the Claimant).
The decision
The Claimant argued that litigation privilege can only be claimed over communications between a party to litigation or its lawyers, on the one hand, and third parties on the other hand. This does not include victims of a crime if the victim is not a party to the related criminal proceedings.
Murray J noted that this was both the most interesting and the most difficult element of the application. He found that there was no clear authority on the point. The judge commented that while three of the leading privilege textbooks support the proposition that only a potential or actual party to litigation can claim litigation privilege, each appeared to rely on a different authority and the authority relied on in each case appeared not to support the proposition. The judge considered the underlying purpose of litigation privilege and stated that he could see no reason as a matter of principle or policy for limiting litigation privilege to a prospective or actual party to litigation. Further, the leading authorities on privilege did not do so.
The judge noted that it was not surprising that cases and commentary discussed litigation privilege by reference to a party to litigation. It would not often be the case that a non-party had a sufficient interest in litigation to seek legal advice in relation to it and, crucially, for that purpose communicate with third parties (either directly or via their lawyer) to obtain documents to ensure that the instructed lawyer had a proper basis on which to advise. A victim of a crime, particularly of fraud, was a good example of a person likely to have a sufficient interest in litigation such as to obtain legal advice regarding the proceedings.
Murray J summarised the position as follows:
Where a victim of a crime has a sufficient interest in criminal litigation arising out of the crime such that they are motivated to seek legal advice, there is no reason of principle or policy why documents generated by the victim or their lawyer in communication with third parties or other documents coming into their possession or control in connection with those communications should not be protected by litigation privilege, provided that the necessary conditions are otherwise satisfied, including that the relevant litigation is in reasonable contemplation and that the communications are for the dominant purpose of enabling the relevant legal advice to be sought or given and/or seeking or obtaining evidence or information to be used in or in connection with the relevant litigation.
The judge upheld the claim to litigation privilege.
Key takeaways
The judge’s decision differs from leading texts on privilege. The decision makes clear that what is necessary (if not sufficient), in order for litigation privilege to be available to a non-party to litigation is that the non-party has a sufficient interest in prospective or actual litigation such that it seeks legal advice and, in connection with that legal advice, communicates with third parties (directly or through its lawyer) and obtains documents to ensure that the legal advice is properly founded.
This case appears to widen significantly the scope of litigation privilege. However, it may not apply often in practice. The judge himself noted that it will be relatively uncommon that a non-party to litigation will have a sufficient interest in the litigation to be motivated to seek legal advice and, in connection with the legal advice, to create or obtain documents for the purpose of ensuring that the legal advice is properly based.
However, an alleged victim of crime, particularly fraud, is a good example of a non-party who may benefit from this principle and claim litigation privilege.
As the burden of proof is on the party claiming privilege, in any investigation, what will and will not be protected needs to be considered thoroughly at the outset. As this judgment demonstrates, the exact boundaries of privilege are not always clear cut and may necessitate analysing the underlying principles as opposed to what are considered to be set rules.