Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 286 (16 March 2005)

Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 286 (16 March 2005)

The fraud exception to legal professional privilege applies equally to litigation privilege as to legal advice privilege. Where there is a strong prima facie case, or established finding, of fraud, privilege does not attach to communications made in furtherance of that fraud, even if litigation has commenced. In this case, the established findings of forgery, perjury, and conspiracy to deceive the court by IAC mean that no privilege attaches to the relevant documents, and inspection must be permitted.

Citation
[2005] EWCA Civ 286
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 (commercial Court) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Legal Professional Privilege, Fraud Exception, Litigation Privilege, Disclosure and Inspection of Documents, Perjury, Forgery, Conspiracy to Pervert the Course of Justice
Civil Procedure Evidence Commercial Law Legal Professional Privilege Fraud Exception Litigation Privilege Disclosure and Inspection of Documents Perjury +2 more

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Parties

Kuwait Airways Corporation

Claimant/respondent

Iraqi Airways Company

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court (commercial Court) to Court of Appeal

Legal Issues

  1. 1 Does the fraud exception to legal professional privilege apply to litigation privilege as well as legal advice privilege?
  2. 2 Is there sufficient evidence of fraud to justify ordering inspection of documents otherwise protected by privilege?

Ratio Decidendi

The fraud exception to legal professional privilege applies equally to litigation privilege as to legal advice privilege. Where there is a strong prima facie case, or established finding, of fraud, privilege does not attach to communications made in furtherance of that fraud, even if litigation has commenced. In this case, the established findings of forgery, perjury, and conspiracy to deceive the court by IAC mean that no privilege attaches to the relevant documents, and inspection must be permitted.

Court Disposition

Appeal dismissed

Orders

  • Order of David Steel J upheld: IAC must permit inspection by KAC of the relevant documents; no privilege attaches to documents generated in furtherance of the fraud.