Kuwait Airways Corporation v Iraqi Airways Company

Kuwait Airways Corporation v Iraqi Airways Company

The fraud exception to legal professional privilege applies to litigation privilege as well as legal advice privilege. Where there is a very strong prima facie case, or established finding, of fraud, perjury, and conspiracy to deceive the court, privilege does not attach to communications or documents created in furtherance of that fraud, even if litigation is ongoing. In this case, the fraud, perjury, and conspiracy were established in prior proceedings, so no privilege exists for the disputed documents, and inspection must be allowed.

Parties
Claimant/respondent: Kuwait Airways Corporation; Defendant/appellant: Iraqi Airways Company
Jurisdiction
England and Wales
Judgment Date
16 March 2005
Procedural Posture
Civil Appeal / Appeal From High Court Judgment on Discovery/inspection Order
Outcome
Appeal dismissed
Legal Topics
Fraud Exception, Litigation Privilege, Legal Advice Privilege, Discovery and Inspection, Perjury, Forgery
Civil Procedure Evidence Legal Professional Privilege Fraud Exception Litigation Privilege Legal Advice Privilege Discovery and Inspection Perjury +1 more

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Parties

Kuwait Airways Corporation

Claimant/respondent

Iraqi Airways Company

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court Judgment on Discovery/inspection Order

Legal Issues

  1. 1 Does the fraud exception to legal professional privilege apply to litigation privilege as well as legal advice privilege?
  2. 2 Should inspection of documents be ordered where there is established fraud, perjury, and conspiracy to deceive the court in prior proceedings?

Ratio Decidendi

The fraud exception to legal professional privilege applies to litigation privilege as well as legal advice privilege. Where there is a very strong prima facie case, or established finding, of fraud, perjury, and conspiracy to deceive the court, privilege does not attach to communications or documents created in furtherance of that fraud, even if litigation is ongoing. In this case, the fraud, perjury, and conspiracy were established in prior proceedings, so no privilege exists for the disputed documents, and inspection must be allowed.

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court for inspection of documents upheld
  • No privilege attaches to documents created in furtherance of the established fraud, perjury, and conspiracy