Morritt J said: ‘The rationale for the principle, and the decisions cited all pointed to the conclusion that communications in furtherance of a crime or fraud were not protected from disclosure if they were relevant to an issue in the action whether of not the plaintiff’s claim was founded on that crime or fraud.
Different considerations might apply to litigation privilege. It was plain from the authorities that litigation privilege was not displaced solely by virtue of the original fraud or crime: see R v Cox and Railton (at p 175); O’Rourke v Darbishire ([1920] AC 581, 622-3); R v Snaresbrook Crown Court, ex parte DPP ([1988] 1 QB 532, 537); and Francis and Francis . .
But none of those cases dealt with the situation where a client, having committed a fraud, sought to further that fraud by stifling it yet further after proceedings were anticipated or commenced by putting forward to his solicitors bogus defences.
The rationale behind the principle that by deceiving his solicitor the client deprived the communication of the necessary element of professional confidence was as applicable to communications after proceedings had been brought as to those which took place before.’
Judges:
Morritt J
Citations:
Times, 22 April 1999
Jurisdiction:
England and Wales
Cited by:
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 . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 23 May 2022; Ref: scu.622383