Accident Exchange Ltd & Anor v McLean & Ors [2018] EWHC 23 (Comm) (11 January 2018)

Accident Exchange Ltd & Anor v McLean & Ors [2018] EWHC 23 (Comm) (11 January 2018)

The iniquity exception to privilege does not apply in this case because the solicitor defendants' clients were not used as 'tools' by Autofocus Ltd in the sense required by the authorities. The relationship between the clients and their solicitors was ordinary and legitimate, and AF's wrongdoing was parasitic, not foundational, to that relationship. Therefore, the documents sought by AE remain privileged and are not subject to inspection under the iniquity exception.

Citation
[2018] EWHC 23 (Comm)
Parties
Claimant: Accident Exchange Limited; Claimant: Automotive and Insurance Solutions Group PLC; Defendant: Colin McLean; Defendant: Suzanna Forrest; Defendant: Morgan Cole (a firm); Defendant: Morgan Cole LLP; Defendant: Neil Forsyth; Defendant: Keoghs (a firm); Defendant: Keoghs LLP; Defendant: Melanie Mooney; Defendant: Lyons Davidson (a firm); Defendant: Nigel Partridge
Jurisdiction
England and Wales
Judgment Date
11 January 2018
Procedural Posture
Commercial Court Civil Litigation / Interlocutory Applications Regarding Privilege and Disclosure
Outcome
AE's application for inspection of privileged documents refused; solicitor defendants' and Lyons Davidson defendants' applications for disclosure addressed separately.
Legal Topics
Iniquity Exception to Privilege, Conspiracy and Deceit, Disclosure Obligations, Third Party Wrongdoing and Privilege
Civil Procedure Legal Professional Privilege Tort Law Iniquity Exception to Privilege Conspiracy and Deceit Disclosure Obligations Third Party Wrongdoing and Privilege

Case Brief

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Parties

Accident Exchange Limited

Claimant

Automotive and Insurance Solutions Group PLC

Claimant

Colin McLean

Defendant

Suzanna Forrest

Defendant

Morgan Cole (a firm)

Defendant

Morgan Cole LLP

Defendant

Neil Forsyth

Defendant

Keoghs (a firm)

Defendant

Keoghs LLP

Defendant

Melanie Mooney

Defendant

Lyons Davidson (a firm)

Defendant

Nigel Partridge

Defendant

Procedural Posture

Commercial Court Civil Litigation / Interlocutory Applications Regarding Privilege and Disclosure

Legal Issues

  1. 1 Does the iniquity exception to legal professional privilege apply to documents held by solicitor defendants where the alleged wrongdoing is by a third party (Autofocus Ltd) and not the solicitor defendants' clients?
  2. 2 Are the claimants entitled to inspection of documents over which privilege is claimed, on the basis of the iniquity exception?
  3. 3 Are the claimants in control of documents held by solicitors instructed by their clients in underlying credit hire claims, and can they disclose them without client consent?

Ratio Decidendi

The iniquity exception to privilege does not apply in this case because the solicitor defendants' clients were not used as 'tools' by Autofocus Ltd in the sense required by the authorities. The relationship between the clients and their solicitors was ordinary and legitimate, and AF's wrongdoing was parasitic, not foundational, to that relationship. Therefore, the documents sought by AE remain privileged and are not subject to inspection under the iniquity exception.

Court Disposition

AE's application for inspection of privileged documents refused; solicitor defendants' and Lyons Davidson defendants' applications for disclosure addressed separately.

Orders

  • AE's application for inspection of documents over which privilege is claimed is refused.