Important judgment on legal professional privilege and the “iniquity exception” to privilege

Judgment was delivered in the Commercial Court on 11 January in the case of Accident Exchange Ltd v McLean and others [2018] EWHC 23 (Comm).  The judgment considers the “iniquity exception” to legal professional privilege and, in particular, the limited circumstances in which a lawyer’s client may lose the protection of privilege because of the (alleged) wrongdoing of another person.  In the litigation, the Claimants are alleging that a company which provided evidence for litigation, and a number of firms of solicitors, conspired to produce false or misleading evidence in relation to thousands of County Court case; allegations which are denied.  The Claimants sought inspection of case files of the solicitors despite the fact that much of the content was prima facie subject to privilege for their lay clients and those clients’ insurers.  Sir Andrew Smith refused the Claimants’ application and, in the course of his judgment, he analysed and elaborated on the authorities governing loss of privilege through the alleged iniquity of a third party.

Jonathan Hough QC acted for insurers who participated in the hearing to protect their privilege and that of their insureds.  Jamie Smith QC, Miles Harris and Mark Cullen are representing two of the Defendants in the substantive litigation.

The judgment can be read here.