An exploration of the standard of proof required for displacing a claim of Legal Professional Privilege on the grounds of ‘inquity.’

The case concerned an application for disclosure of data under the Data Protection Act 1998.
First, Warby J dealt with iniquity at [paras 75-77]

‘The Iniquity Issue
The existence of a principle that LPP cannot be used as a basis for withholding material that is evidence of iniquity is not in dispute. I shall call this the iniquity principle. The parties are at odds about the scope of the iniquity principle, that is to say to what forms of iniquity it extends. They are also at odds about the threshold test for the iniquity principle, that is, what standard must be met before the court will refuse to uphold privilege on this ground. Thirdly, there is dispute about what inferences may be drawn from the evidence before the court.

The authorities show that a speculative case that the documents in question might involve or evidence iniquity will not suffice to displace LPP, where it would otherwise apply. The test of whether there is a “strong prima facie case” of iniquity has been adopted: BGBP Managing Global Partner Ltd v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch) [2011] Ch 296 [68] (Norris J).

Where fraud is one of the issues in the action the view has been expressed that a “very strong” prima facie case will be required: Kuwait Airways [42](2) (Longmore LJ).
The lowest it has been put in the authorities before me is that where fraud is not one of the issues in the action a “prima facie case” of fraud may be enough: Kuwait Airways v Iraqi Airways [2005] EWCA Civ 286 [2005] 1 WLR 2734 [42](3) (obiter).

It is to be borne in mind that the court will not too readily find a prima facie case of fraud, or wrongdoing of comparable gravity.

It is clear law that LPP cannot be maintained in respect of documents or data which are evidence of criminal conduct or fraud. Hence,
“… criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege.”
Dubai Aluminium v Al-Alawi [1999] 1 WLR 1964, 1969F (Rix J). [see the separate entry relating to Dubai under this tag].

There, the allegation was that the defendants had instructed inquiry agents to engage in conduct that involved a criminal offence contrary to s 5(6) of the Data Protection Act 1984. See also Kuwait Airways [34] (Longmore LJ), approving Rix J’s decision.’

Second, Warby J dealt with an argument that breach of human rights might amount to iniquity. [paras 85 to 95]

‘Fundamental rights
[The] alternative submission [is] , that Mr C’s reliance on the LPP Exemption should not be allowed to prevail on the basis that the data for which exemption is claimed may reveal breaches of fundamental human rights, is more legally ambitious.

The argument describes privacy rights, including subject access, as “fundamental rights” for several reasons. Reliance is, naturally, placed on Article 8 of the Convention. [Counsel] acknowledges of course that Article 8 is not directly applicable between private citizens, but points out that the positive obligations of the state pursuant to Article 8 have led to the creation of the common law tort of misuse of private information. She also contends that subject access is an aspect of the right to respect for private life protected by Article 8. Personal data rights are also protected by Article 8 of the EU Charter of Fundamental Rights, which protects subject access as a freestanding right…

Acknowledging that there is no authority that breach of a human right is to be equated with crime or fraud for the purposes of the iniquity principle, [Counsel] submits that this extension of the existing law is required by principle and that the authorities “create an environment that is highly conducive to accepting the claimant’s case.”

[The first argument (which was rejected)]
As to principle, the following submissions are made.
(a) The fundamental right to privacy is interfered with by covert surveillance or investigation of an individual, even in a public place.
(b) Such interference requires a justification which is prescribed by law, pursues a legitimate aim, and is necessary for and proportionate to the pursuit of that aim.
(c) The court must construe and apply the law compatibly with these principles pursuant to s 6 of the Human Rights Act 1998.
(d) It is also bound to construe and apply domestic law compatibly with the Charter.
(e) It must in particular ensure that a remedy for breach of fundamental rights is available, in accordance with Article 47 of the EU Charter: Vidal-Hall v Google Inc [2015] EWCA Civ 311 [2015] 3 WLR 409.
(f) The court would not be acting in accordance with these obligations if it allowed LPP to protect unlawful activity in breach of these rights. LPP should not be allowed to trump or be paramount over privacy rights. There is no human right to conceal evidence of one’s own violation of another human right.

[The alleged authority for the first argument]
As to authority, [Counsel] relies on some general observations as to the scope of the iniquity principle by:
(i) Rix J in Dubai Aluminium at 1969C-D,
(ii) Colman J in The David Agmeshenebeli [2001] CLC 942, 947E-H, and
(iii) Norris J in BBGP [61].

[Counsel ]points out that in R (Morgan Grenfell) v Special Commissioner of Income Tax [2002] UKHL 21 [2003] 1 AC 563 [43] Lord Hobhouse suggested that some at least of the basic premises that underlie LPP “would benefit from further examination.”

And [Counsel] refers me to R v Brown (Edward) [2015] EWCA Crim 1328 [2016] 1 WLR 1141 where it was held that in exceptional circumstances the usually inviolable privilege attaching to legal advice was capable of qualification at common law, even outside the situation where a meeting with lawyers was being misused in order to commit a crime.

[The rejection of the first argument]
This is a novel, but ingenious argument, which has been skilfully developed at the hearing. But in my judgment it cannot prevail.

First and foremost, the argument founders on the facts…The court will not set aside a claim to LPP on the basis of the iniquity principle unless there is at least a prima facie case of wrongdoing. There is no such case.

There has been much talk in the course of submissions about the evils of surveillance, but the evidence does not support the conclusion that X engaged in any surveillance. There is no worthwhile evidence that the firm did more than carry out investigation.

It is not the case that every investigation into an individual is necessarily an interference with private life.

Nor is it the case that any investigation which does involve an interference must necessarily involve an unjustified interference.

There is no direct evidence as to the nature of the investigation undertaken by X…
Having reached those conclusions (on the facts) I can deal relatively shortly with the points of law. The authorities relied on are of no real assistance to the argument.

The words of Lord Hobhouse in Morgan Grenfell are of no help to [Counsel], representing no more than a minority obiter comment in a case which faithfully applied established principles, as to which see below.

The three cases relied on as indicating that “iniquity” has a broader meaning than just crime or fraud are first instance authority on facts far removed from the present, and do nothing to support the broad submissions advanced.

Brown was concerned with legal advice privilege not litigation privilege, and establishes a qualification of narrow scope based on quite exceptional facts (the point at issue was whether staff should be allowed to attend a conference between a convicted murderer and his lawyers to prevent the applicant committing suicide). It is true that the exception was rooted in a Convention right – the right to life. But I think it would be going much too far to treat this decision as a springboard for the much broader submission that the court is duty bound to allow an incursion into LPP whenever the documents for which protection is sought may evidence a breach of any human right.

That, on analysis, has to be the logic of [Counsel’s] position. However much she may emphasise the “fundamental” nature of the privacy rights at issue in this case she cannot submit that they fall into any special or separate category from other fundamental human rights.

If the argument is sound, it must apply to other human rights such as (for instance) the right to freedom of expression protected by Article 10, or the right to peaceful enjoyment of possessions protected by Article 1 of Protocol 1.

It seems to me therefore that [Opposing Counsel] is right to submit that this argument seeks a substantial expansion of the iniquity principle which would, on the face of it, significantly erode the right to LPP. I also see a great deal of force in Mr Pitt-Payne’s submission that the argument for Mr Holyoake fails properly to recognise that the right to LPP is itself a fundamental human right.

Authority establishes that LPP is an aspect of the rights protected by Article 8 ECHR (see Campbell v United Kingdom (1992) 15 EHRR 137).
Those same rights are also protected by Article 7 of the Charter.

Recognition of the need in the public interest to protect communications between client and lawyer is a common feature of European legal systems so that the protection of LPP is, to some extent at least, a principle of EU law: A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878 [21-22].

[The second argument (which was rejected)]

Bearing these points in mind it might be thought, and [Counsel] has argued in the alternative, that the court should adopt a balancing approach, weighing one competing right against another.

[Rejection of the second argument]

Such an approach would limit the extent to which this human rights argument would involve an incursion into LPP. But it would create a new exception of uncertain ambit.
It would also appear to be inconsistent with House of Lords authority. In R v Derby Magistrates Court, ex parte B [1996] 1 AC 487 the House rejected the notion that the availability of legal advice privilege might admit of exceptions, to be identified using a balancing approach.

Lord Taylor CJ said at 508D-E that

“if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client’s individual merits.”

The reference was to the decisions in Berd v Lovelace (1577) Cary 62 and Dennis v Codrington (1579) Cary 100 (see [1996] 1 AC 504B-D). Lords Keith, Mustill and Lloyd agreed. Lord Nicholls at 511G-512E adopted the same approach. This rejection of a balancing approach is one of the fundamentals referred to by Lord Hobhouse in Morgan Grenfell, but as already observed, his views were obiter.

Of course, the court is familiar with the process of striking a balance between competing fundamental rights. There is no inherent difficulty in the process, which has become a regular feature of judicial decision-making over the 16 years that have passed since the passage of the HRA. But the HRA has not abrogated the doctrine of precedent, which continues to apply subject to certain exceptions: Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465, R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] 1 AC 311. It is not submitted that the exceptions apply here.

If the law is to be developed in the way contended for it will have to be done by another court on another occasion. For my part, I am not persuaded that the quite radical extension of the iniquity principle that is advocated…is required by the HRA or the Charter.’

[This judgment has been reformatted and split up for ease of reading. Sub-paragraphing has been added.]