The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: The ‘fraud exception which would deny the protection of privilege applied both to litigation privilege and to legal advice privilege, but the fraud had to be one of the pleaded issues and there had to be strong proof of the fraud. ‘the fraud exception can in principle apply even when litigation has begun with the result that privilege will not attach to documents which further the fraud or the criminal purpose.’ though the court would be careful in exercising this jurisdiction. In summary ‘(1) the fraud exception can apply where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege; (2) nevertheless it can only be used in cases in which the issue of fraud is one of the issues in the action where there is a strong (I would myself use the words ‘very strong’) prima facie case of fraud as there was in Dubai Aluminium v Al-Alawi and there was not in Chandler v Church; (3) where the issue of fraud is not one of the issues in the action, a prima facie case of fraud may be enough as in Hallinan.’ Appeal dismissed.
Ward, Longmore LJJ
[2005] EWCA Civ 286, Times 25-Apr-2005, [2005] 1 WLR 2734
Bailii
England and Wales
Citing:
See Also – Kuwait Airways Corporation v Iraqi Airways Company ComC 31-Jul-2002
. .
Appeal from – Kuwait Airways Corp v Iraqi Airways Co 16-Feb-2005
The claimants sought an order requiring disclosure by the defendants of the documents in their list of documents which they said had the benefit of litigation privilege.
Held: A fraud had been alleged which had been used by the defendants in . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – O’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
Cited – Kuwait Airways Corp v Iraqi Airways Company ComC 24-Jan-2003
The court found that the defendant had brought false evidence and forged documents to seek to persuade the English court that it had state immunity, and had been partially successful, but that on the true facts it was not immune from the . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions 1988
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited – Hallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
Cited – Omar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Approved – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
Cited – Chandler v Church 1987
(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the . .
Cited – Regina v Derby Magistrates Court Ex Parte B QBD 31-Oct-1994
A solicitor was correctly required by the court to produce his client attendance notes from the conduct of the defence for a client previously acquitted of murder for use in a trial of a later Defendant. . .
Cited – Barclays Bank Plc v Eustice CA 6-Jul-1995
No Professional Privilege in Iniquity
There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with . .
Cited by:
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.223579