Karam Salah al Din Awni al Sadeq v Dechert LLP & Ors

Karam Salah al Din Awni al Sadeq v Dechert LLP & Ors

The Court of Appeal held that the correct threshold for the iniquity exception is a prima facie case (balance of probabilities), and that the exception applies to documents brought into existence as part of or in furtherance of the iniquity, including those reporting on or revealing it. The court found that the three iniquities (unlawful detention and rendition, inhumane conditions, denial of legal representation) were made out on the evidence. The disclosure exercise must be re-done applying the correct test. Litigation privilege can apply to proceedings where the privilege holder is not a party if the dominant purpose test is met. The Three Rivers (No 5) principle does not apply to...

Parties
Claimant/appellant: Karam Salah Al Din Awni Al Sadeq; First Defendant/respondent: Dechert LLP; Second Defendant/respondent: Neil Gerrard; Third Defendant/respondent: David Hughes; Fourth Defendant/respondent: Caroline Black
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
Litigation Privilege, Legal Advice Privilege, Iniquity Exception, Disclosure, Human Rights
Civil Procedure Legal Professional Privilege Litigation Privilege Legal Advice Privilege Iniquity Exception Disclosure Human Rights

Case Brief

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Parties

Karam Salah Al Din Awni Al Sadeq

Claimant/appellant

Dechert LLP

First Defendant/respondent

Neil Gerrard

Second Defendant/respondent

David Hughes

Third Defendant/respondent

Caroline Black

Fourth Defendant/respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 What is the correct threshold for the iniquity exception to legal professional privilege?
  2. 2 What is the proper relationship test between the communication and the iniquity for privilege to be lost?
  3. 3 Does litigation privilege extend to criminal/extradition proceedings where the privilege holder is not a party?

Ratio Decidendi

The Court of Appeal held that the correct threshold for the iniquity exception is a prima facie case (balance of probabilities), and that the exception applies to documents brought into existence as part of or in furtherance of the iniquity, including those reporting on or revealing it. The court found that the three iniquities (unlawful detention and rendition, inhumane conditions, denial of legal representation) were made out on the evidence. The disclosure exercise must be re-done applying the correct test. Litigation privilege can apply to proceedings where the privilege holder is not a party if the dominant purpose test is met. The Three Rivers (No 5) principle does not apply to...

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • The disclosure exercise must be re-undertaken applying the correct iniquity exception test as set out in the judgment.
  • Further evidence application refused.