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ARTICLE · 16 MARCH 2020

Master Finds Privilege Does Not Apply To Documents Held In Solicitors' Client Files Due To The Fraud Exception

Herbert Smith Freehills Kramer LLP
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A High Court Master has found that documents held by a firm of solicitors on behalf of a former client were not protected by legal professional privilege

United KingdomLitigation, Mediation & Arbitration
Julian Copeman
Julian Copeman
Anna Pertoldi
Anna Pertoldi
Maura McIntosh
Maura McIntosh

A High Court Master has found that documents held by a firm of solicitors on behalf of a former client were not protected by legal professional privilege, as there was a strong prima facie case that the firm had been instructed for the purpose of furthering the client’s fraudulent investment scheme: Addlesee v Dentons Europe LLP [2020] EWHC 238 (Ch).

It is well established that privilege does not attach to communications between lawyer and client if the lawyer is instructed for the purpose of furthering crime, fraud or iniquity. This is referred to as the fraud exception, or sometimes the iniquity principle. It is also well established that, to apply the fraud exception, the alleged fraud need not be established on the balance of probabilities. What is required is sufficient prima facie evidence.

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