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Privilege is a fundamental principle in the solicitor-client relationship which is rigorously upheld by the Courts, who have gone so far as to equate to it to a human right. It is only in rare and specific circumstances that an exception is found to privilege such that documents over which privilege was previously claimed, are ordered to be disclosed.

There have been two recent decisions of note where an exception to privilege has been found – Enigma Diagnostics v Boulter1 in the High Court, and Al Sadeq v Dechert2. In this article, we consider what the iniquity exception is, when it will apply and where the line of precedent may lead in future.

What is the iniquity exception?

The principles of legal professional privilege are well established – the term encompasses both legal advice privilege (which applies when legal advice is sought by a client from a solicitor or barrister) and litigation privilege (which applies to advice and materials, between a lawyer and its client or third parties, in contemplation of or relating to the preparation of litigation).

The law has vigorously defended the principles of legal professional privilege, with Lord Hoffman referring to the principles in R v Special Commissioner of Income Tax as being:

“… a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.”3

As a result, solicitors are under a duty to preserve their clients’ privilege even in the case of their client being deceased or, if the client is a company, dissolved.

However, privilege can be defeated in limited circumstances, including where it is shown that the
iniquity exception applies. Previously the exception was understood to only apply where fraud had been perpetrated (hence historic references to the “fraud exception”). Now it is better understood to apply to other equivalent underhand conduct.

In broad terms, this exception applies to documents or communications which are themselves part of a fraud. The principle was established in R v Cox & Railton4 and was, in the originating case, justified by Mr Justice Steven as “a communication in furtherance of a criminal purpose [which] does not come into the ordinary scope of professional employment5. In other words, the cloak used to protect clients’ legal advice should not apply when this advice is being used as a means to a criminal end. There are important public policy grounds underpinning this reasoning, however the application and extent of this exception has evolved significantly since it was first established almost 140 years ago.

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1 Enigma Diagnostics Ltd & Ors v Boulter & Ors [2023] EWHC 1999 (Ch)
2 Al Sadeq v Dechert LLP & Ors [2024] EWCA Civ 28
3 R (Morgan, Grenfell & Co Limited) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563 [7]
4 R v Cox & Railton [1884] 14 QBD 153
5 Ibid [167]

Kit Smith is a Managing Associate and Alex Boardman is a Paralegal.