In Al Sadeq v Dechert LLP & Others, the court concluded that a non-party to litigation, such as a victim of a crime, might be able to assert litigation privilege so long as they have a sufficient interest in the litigation and they fulfil the other necessary conditions for litigation privilege to apply.
What is Litigation Privilege?
Under the concept of privilege, communication between you and your lawyer or other third parties can remain confidential where it relates to legal proceedings or potential legal proceedings.
Litigation privilege will cover documents created in respect of legal proceedings or anticipation of legal proceedings. However, the documents themselves must be connected to the litigation, and this must have been the main purpose of the document.
Case Background
Mr Al Sadeq, the claimant, is a former Deputy Chief Executive Officer for the Ras Al Khaimah Investment Authority (RAKIA). The Government of Ras Al Khaimah instructed Dechert LLP (“Dechert”), an international law firm, to investigate the alleged fraud and misappropriation of public assets relating to transactions carried out by subsidiary companies of RAKIA.
Mr Al Sadeq brought claims against Dechert and three former partners under UAE law, contending that during their investigation, they had committed serious wrongs against him. Among other things, he alleged that he had been unlawfully arrested and abducted from his home in Dubai as well as unlawfully imprisoned and tortured.
Dechert claimed privilege over certain documents based on their clients’ litigation privilege. Mr Al Sadeq, however, sought to challenge this on the basis that the firm’s clients were not a party to the relevant application and therefore this litigation did not directly involve those clients.
The Outcome
The High Court looked at the underlying purpose of litigation privilege and concluded that it can, in some circumstances, be claimed by non-parties to litigation. However, the non-party in question must have sufficient interest in the anticipated litigation such that it creates documents for the dominant purpose of that litigation. In the High Court’s view, a victim of crime, particularly of fraud, is a good example of a person likely to have sufficient interest in the litigation to wish to obtain legal advice about the proceedings.
The High Court went on to dismiss the application and upheld Dechert’s claims of litigation privilege on their client’s behalf.
Comment
In reaching its conclusion, the court acknowledged that the law regarding non-parties and privileges was inconclusive and needed to be reviewed. It is therefore unsurprising that the Court of Appeal has now granted permission to appeal this decision so this may not be the last word on this issue.
If you are involved in a legal dispute, our expert litigation lawyers can work with you to ensure that privilege is maintained in crucial documents and communications. Contact our team via email today to discuss your options on how to proceed.
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