Dubai Aluminium Company Ltd v Sayed Reyadh Abdulla S Nasser Al Alawi and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 1999 |
| Date | 03 December 1999 |
| Court | Queen's Bench Division (Commercial Court) |
Practice - Discovery - Privilege - Professional privilege - Evidence for use in litigation against defendant obtained by criminal or fraudulent conduct of investigative agents employed by plaintiff's solicitor - Application by defendant for discovery of documents so obtained - Whether legal professional privilege attaching to documents - Whether discovery to be ordered
The plaintiff company brought claims against the first defendant, a former employee, for money had and received, for damages for breach of his contract of employment and for the recovery of an unquantified sum in secret commissions. In support of its claim, it obtained an Anton Piller order and a worldwide Mareva injunction. The defendant applied by summons to discharge both orders, claiming that agents employed by the plaintiff to investigate his finances and assets had acted in contravention of the
On the defendant's application: —
Held, granting the application, that criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation fell into the same category as advising on or setting up criminal or fraudulent transactions yet to be undertaken, as distinct from the legitimate professional business of advising and assisting clients on their past conduct however iniquitous; that any documents which were generated by or reported on such conduct and were relevant to the issues in the case were discoverable and fell outside the legitimate area of legal professional privilege; that there was a strong prima facie case of criminal or fraudulent conduct in the obtaining of information relating to the defendant's finances by the investigative agents; and that, accordingly, disclosure of the documents sought by the plaintiff would be granted (post, pp. 1968D–E, 1969E–F, 1970A–B).
Per curiam. The principle that all relevant evidence is admissible cannot be said to require privilege even where crime or fraud has been committed to obtain information (post, pp. 1969H–A).
The following cases were referred to in the judgment:
Bank of Nova Scotia v. Hellenic Mutual War Risks Association (Bermuda) Ltd. (Note) (No. 2) [
Barclays Bank Plc. v. Eustice [
Bullivant v. Attorney-General for Victoria [
Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. [
Dubai Aluminium Co Ltd. v. Salaam [
G.E. Capital Corporate Finance Group Ltd. v. Bankers Trust Co. [
Gamlen Chemical Co (U.K.) Ltd. v. Rochem Ltd. [
Greenough v. Gaskell (
Hellenic Mutual War Risks Association (Bermuda) Ltd. v. Harrison [
Kuruma v. The Queen [
O'Rourke v. Darbishire [
Reg. v. Cox and Railton (
Reg. v. Leatham (
Ventouris v. Mountain [
Williams v. Quebrada Railway Land and Copper Co. [
No additional cases were cited in argument.
Application
By a summons dated 22 September 1996, the first defendant, Mr Riyad Al Alawi, made an application in an action begun by writ by the plaintiff, Dubai Aluminium Co. Ltd., seeking, inter alia, an order pursuant to
The facts are as stated in the judgment.
B. Clive Freedman Q.C. and Alan Gourgey for the first defendant.
Mark Pelling for the plaintiff.
Rix J. In this case the plaintiff, Dubai Aluminium Co. Ltd. (“Dubal”), which operates an aluminium smelter in Dubai, sues among other defendants Mr. Riyad Al Alawi, the first defendant, in respect of his conduct as its sales manager during the years 1984 to 1993.
Dubal makes essentially three claims against Mr. Al Alawi. The first is a claim for money had and received in the sum of $804,000. Mr. Al Alawi admits that he received this money, but alleges that he gave consideration for it. Dubal alleges that he gave no consideration, and that the money was paid by a company then called Marc Rich & Co. A.G. (“Richco”) as part of a dishonest scheme, hatched by, inter alios, Dubal's chief executive Mr. Ian Livingstone, under which Richco pre-bought Dubal's aluminium at a discounted price and in return provided finance in a very large sum for the construction of a fourth potline, all on what is said to be disadvantageous terms to Dubal.
The second claim is for damages for breach of Mr. Al Alawi's contract of employment in the sum of approximately $8.5m., representing the total of all such payments by Richco to various Dubal employees and others arising out of this allegedly dishonest transaction.
The third claim is to recover secret commissions in an unquantified sum which, it is alleged, it must be inferred that Mr. Al Alawi obtained out of his employment with Dubal. Among the grounds put forward for this inference is the allegation that, during the years he was employed by Dubal, Mr. Al Alawi accumulated far more than he officially earned. It is also alleged that he participated during this period in the making by Dubal of highly disadvantageous agreements, and that his fortune is the...
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