Effect of fraud on civil legal professional privilege

Kuwait Airways Corporation v Iraqi Airways Co (No 6) CA TLR 25 April

There had been a widespread conspiracy to deceive the English courts, which was acted upon and had been proved to have led not only to perjury but to forgery and the perversion of justice on a remarkable, almost unprecedented scale. The furtherance of a criminal purpose such as fraud was an exception to the rule that communications between a solicitor and his client attracted legal professional privilege. It was not an answer for the defendant to say that if litigation was contemplated or had begun, that exception had no application. In summary, the position is: (i) the fraud exception applies where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege; (ii) nevertheless, it can only be used in cases in which the issue of fraud is one of the issues in the action where there is a very strong prima facie case of fraud; and (iii) where the issue of fraud is not one of the issues in the action, a prima facie case of fraud might be enough.