From now on clients should be careful what they ask for... they might get it.
Information is increasingly accessible but not always legally accessible. Legislation such as the Data Protection Act 1984, Computer Misuse Act 1990 and the Criminal Justice and Public Order Act 1994 seek to protect the right of individual/corporate against any invasion of privacy.
Clients requiring information that is/has to be obtained by contravening these laws risk losing their own right to confidentiality. In these circumstances the courts can remove "legal professional privilege" to enable the opposing party to access relevant documentation.
A recent case in the commercial court emphasises the fine line that clients, solicitors and investigators tread when it comes to acquiring information about individuals and/or companies.
Legal professional privilege
A cornerstone of the English judicial system, legal professional privilege, attaches to documents or other written communications prepared with a view to litigation, for example instructions and advice from barristers or experts. Clients instructing solicitors do so secure in the knowledge that not only will the advice given be treated as highly confidential, but that they can talk frankly and receive professional advice without fear that these discussions can be relied upon by an opposing party if a dispute comes before the court. This privilege is not, however, an impenetrable armour plate.
In the recent judgement of Dubai Aluminium Co. Ltd v Al Alawi and Others the commercial judge held that documents generated by criminal or fraudulent conduct fall outside the protective umbrella of professional privilege and are therefore discoverable by the opposing party.
Ultimately, criminal or fraudulent conduct undertaken for the purposes of litigation is treated by the court in the same way as advising or assisting clients on criminal or fraudulent transactions yet to be undertaken. By this means the courts attempt to balance both the public interest in upholding legal professional privilege and the public interest in combatting crime or fraud.
The Background
Dubai Aluminium sued Mr Al Alawi in respect of his conduct as its sales manager between 1984 and 1993. Mr Al Alawi sought discharge of a Mareva (asset-freezing) injunction imposed together with an Anton Piller (search and seize) order on July 28, 1998, on the ground that in investigating his finances and assets Dubai Aluminium had employed agents, a firm of private investigators, who had obtained documents in contravention of the Data Protection Act 1984 and/or Swiss banking laws.
It was accepted by Dubai Aluminium that these documents were relevant and discoverable but they alleged that legal professional privilege attached to them, and that they should not be made available to Mr Al Alawi.
Mr Al Alawi on the other hand successfully argued that these documents contained information obtained through the criminal activities of the private investigators and that they were not protected by legal professional privilege, and as such were discoverable.
The warnings
This case serves as a warning signal for solicitors and their clients who use the services of private investigators or any third party. Should those investigators use methods prohibited by the Data Protection Act 1984, Computer Misuse Act 1990, and the Criminal Justice and Public Order Act 1994 (for example: computer hacking, gathering of information through deception), they will be exposing clients to wide orders for disclosure of, for example, instructions, reports and the documentary evidence obtained from those sources where previously that information would have been protected by legal professional privilege.
The possibility of a court in a civil case ordering disclosure of information which can only have been obtained by illegal means exposes both investigators and those instructing them to a risk of the possibility of sanctions or even prosecution under the relevant statutes.
For further information please contact Liat Shimron, e-mail: Click Contact Link , 7 Devonshire Square, Cutlers Gardens, London EC2M 4YH, UK, Tel: + 44 171 655 1000
This article was first published in the March 1999 Hammond Suddards Commercial Dispute Resolution Newsletter
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
Information is increasingly accessible but not always legally accessible. Legislation such as the Data Protection Act 1984, Computer Misuse Act 1990 and the Criminal Justice and Public Order Act 1994 seek to protect the right of individual/corporate against any invasion of privacy.
Clients requiring information that is/has to be obtained by contravening these laws risk losing their own right to confidentiality. In these circumstances the courts can remove "legal professional privilege" to enable the opposing party to access relevant documentation.
A recent case in the commercial court emphasises the fine line that clients, solicitors and investigators tread when it comes to acquiring information about individuals and/or companies.
Legal professional privilege
A cornerstone of the English judicial system, legal professional privilege, attaches to documents or other written communications prepared with a view to litigation, for example instructions and advice from barristers or experts. Clients instructing solicitors do so secure in the knowledge that not only will the advice given be treated as highly confidential, but that they can talk frankly and receive professional advice without fear that these discussions can be relied upon by an opposing party if a dispute comes before the court. This privilege is not, however, an impenetrable armour plate.
In the recent judgement of Dubai Aluminium Co. Ltd v Al Alawi and Others the commercial judge held that documents generated by criminal or fraudulent conduct fall outside the protective umbrella of professional privilege and are therefore discoverable by the opposing party.
Ultimately, criminal or fraudulent conduct undertaken for the purposes of litigation is treated by the court in the same way as advising or assisting clients on criminal or fraudulent transactions yet to be undertaken. By this means the courts attempt to balance both the public interest in upholding legal professional privilege and the public interest in combatting crime or fraud.
The Background
Dubai Aluminium sued Mr Al Alawi in respect of his conduct as its sales manager between 1984 and 1993. Mr Al Alawi sought discharge of a Mareva (asset-freezing) injunction imposed together with an Anton Piller (search and seize) order on July 28, 1998, on the ground that in investigating his finances and assets Dubai Aluminium had employed agents, a firm of private investigators, who had obtained documents in contravention of the Data Protection Act 1984 and/or Swiss banking laws.
It was accepted by Dubai Aluminium that these documents were relevant and discoverable but they alleged that legal professional privilege attached to them, and that they should not be made available to Mr Al Alawi.
Mr Al Alawi on the other hand successfully argued that these documents contained information obtained through the criminal activities of the private investigators and that they were not protected by legal professional privilege, and as such were discoverable.
The warnings
This case serves as a warning signal for solicitors and their clients who use the services of private investigators or any third party. Should those investigators use methods prohibited by the Data Protection Act 1984, Computer Misuse Act 1990, and the Criminal Justice and Public Order Act 1994 (for example: computer hacking, gathering of information through deception), they will be exposing clients to wide orders for disclosure of, for example, instructions, reports and the documentary evidence obtained from those sources where previously that information would have been protected by legal professional privilege.
The possibility of a court in a civil case ordering disclosure of information which can only have been obtained by illegal means exposes both investigators and those instructing them to a risk of the possibility of sanctions or even prosecution under the relevant statutes.
For further information please contact Liat Shimron, e-mail: Click Contact Link , 7 Devonshire Square, Cutlers Gardens, London EC2M 4YH, UK, Tel: + 44 171 655 1000
This article was first published in the March 1999 Hammond Suddards Commercial Dispute Resolution Newsletter
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
