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legal professional privilege v iniquity exception… who wins?

14 August 2014

In JSC BTA Bank v Ablyazov & Others the Commercial Court held that a litigant’s strategy of concealment/deceit defeated any claim to privilege it may otherwise have over communications with its lawyers.

JSC sought disclosure of a number of documents held by the defendants’ former solicitors (who were each respondent to the application) that JSC considered these documents showed it had been defrauded of $4billion of judgments.

JSC’s application was made on the grounds that the defendants had pursued a strategy of lying/misleading the court as to the extent and nature of their assets; dealing with assets in breach of Orders; lying/misleading the court as to those transactions; and purposefully putting assets beyond the reach of JSC. JSC also alleged that each firm of solicitors had been used to further that strategy.

In hearing this application Popplewell J held that if iniquity put legal advice outside the scope of a professional engagement or rendered it an abuse of the professional relationship, communications relating to that iniquity could not attract legal professional privilege; demonstrating that privilege cannot be used as a shield against immoral and unjust behaviour.

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