Karam Salah Al Din Awni Al Sadeq v Dechert LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWHC 795 (KB) |
| Court | King's Bench Division |
| Docket Number | Claim No. QB-2020-000322 |
[2023] EWHC 795 (KB)
THE HONOURABLE Mr Justice Murray
Claim No. QB-2020-000322
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Tamara Oppenheimer KC and Mr Simon Paul (instructed by Stokoe Partnership Solicitors) for the Claimant
Mr Philip Edey KC, Mr Luke Pearce and Mr Sandy Phipps (instructed by Enyo Law LLP) for the Defendants
Hearing dates: 20–21 December 2021
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 5 April 2023 at 10:30 am.
Mr Karam Al Din Awni Al Sadeq has brought a claim against Dechert LLP, Mr Neil Gerrard, Mr David Hughes, and Ms Caroline Black under claim number QB-2020-000322 (“the Al Sadeq Proceedings”). I have before me Mr Al Sadeq's application dated 5 November 2021 seeking a determination as to whether the defendants are entitled to withhold inspection, in whole or in part, of various documents on the basis of legal professional privilege and related relief (“the Privilege Application”).
Further to paragraph 1 of my order dated 5 May 2021 (“the May 2021 Order”), the Al Sadeq Proceedings are being case managed and will be tried together with proceedings brought by Mr Jihad Abdul Qader Saleh Quzmar against (1) Dechert LLP and (2) Mr Gerrard under claim number QB-2020-003142 (“the Quzmar Proceedings”).
Since the hearing, a third set of proceedings brought by the solicitors for each of the claimants, Stokoe Partnership Solicitors, against Dechert LLP and Mr Gerrard (and, originally, others, but discontinued in relation to those others) is being case managed and will be tried with the Al Sadeq Proceedings and the Quzmar Proceedings.
The Privilege Application is made only in the Al Sadeq Proceedings. The Quzmar Proceedings are less advanced. The resolution of these issues in relation to Mr Al Sadeq will clearly, however, have implications for the relevant scope of disclosure in relation to the Quzmar Proceedings. It will not, however, be necessary to make further reference in this judgment to the Quzmar Proceedings other than in relation to matters of background.
The scope of the challenge
The draft order accompanying the Privilege Application (“the Draft Order”) sets out the declarations and directions sought by Mr Al Sadeq in relation to the defendants' compliance with their disclosure obligations. The general areas of challenge by Mr Al Sadeq to the approach taken by the defendants to date are as follows, namely, challenges to:
i) the defendants' claims to privilege over certain categories of documents based on the well-known exception to legal professional privilege known as the crime/fraud, fraud or iniquity exception (paragraph 1 of the Draft Order);
ii) the defendants' claims to legal advice privilege on various grounds (paragraphs 2–3 of the Draft Order);
iii) the defendants' claims to litigation privilege on various grounds (paragraphs 4–5 of the Draft Order); and
iv) the approach taken by the defendants to redaction of various documents that have been disclosed and made available in redacted form (paragraph 6 of the Draft Order).
Paragraphs 7–8 of the Draft Order require the defendants to undertake a re-review, to be conducted by counsel, of all relevant documents, applying the principles set out in the Draft Order. Mr Al Sadeq also asked the court to address three miscellaneous privilege issues in paragraph 9 of the Draft Order, although by the time of the hearing only one of those three issues was pursued.
The defendants say that all of Mr Al Sadeq's challenges to the approach that they have taken to disclosure and legal professional privilege are wrong, that the defendants' privilege claims have been carefully and properly made by experienced lawyers applying the correct principles, and that the Privilege Application should therefore be dismissed in its entirety.
As evidence in support of the Privilege Application, Mr Al Sadeq has served the sixth witness statement of Mr Haralambos Tsiattalou dated 5 November 2021. Mr Tsiattalou is a partner in the law firm Stokoe Partnership Solicitors. In response, the defendants have served the ninth witness statement of Mr Edward Allen dated 26 November 2021. Mr Allen is a partner in the law firm Enyo Law LLP (“Enyo Law”), the defendants' solicitors. In reply to that evidence, Mr Al Sadeq has served the ninth witness statement of Mr Tsiattalou dated 6 December 2021.
Mr Al Sadeq has also served evidence of Mr Ali Sultan Al Haddad, the Chairman of the law firm Al Haddad & Associates based in Dubai, which practises throughout the United Arab Emirates (“UAE”). Mr Al Haddad represents Mr Al Sadeq in criminal and civil proceedings in the UAE but did not represent him at the time of his arrest. His evidence is set out in his second witness statement dated 4 November 2021, which is exhibited to Mr Tsiattalou's sixth witness statement, and Mr Al Haddad's third witness statement dated 6 December 2021, which is exhibited to Mr Tsiattalou's ninth witness statement.
The defendants object to the evidence of Mr Al Haddad on the following grounds:
i) to the extent that Mr Al Haddad purports to provide expert evidence on UAE law or practice, the court has not granted permission for that evidence to be provided and therefore it cannot be relied upon; and
ii) to the extent that Mr Al Haddad purports to give factual evidence, it is hearsay evidence about matters concerning which Dr Al Haddad has no personal knowledge.
The defendants did not object to my reading the evidence of Mr Al Haddad de bene esse, which I have.
The background to the Al Sadeq Proceedings
In my judgment handed down on 5 May 2021 setting out my reasons for making the May 2021 Order (neutral citation: [2021] EWHC 1149 (QB)), I summarise the background to the Al Sadeq Proceedings and the Quzmar Proceedings at [8]–[20]. I note that the hearing bundle includes an agreed Case Summary and List of Issues for the Al Sadeq Proceedings at pages 9–28 and for the Quzmar Proceedings at pages 339–356.
For present purposes, I will set out as briefly as I can the key elements of the factual background.
Mr Al Sadeq is a Jordanian citizen and a Jordanian-qualified lawyer. In November 2008, he joined the Ras Al Khaimah Investment Authority (“RAKIA”), the investment authority of the Emirate of Ras Al Khaimah (“RAK”), as a legal adviser, was promoted to Group Legal Director in 2010, and became Deputy Chief Executive Officer in June 2011. He resigned from RAKIA in late 2012, moving to Dubai in or around December 2012, where he established an investment business. He alleges that he was unlawfully arrested at his home in Dubai on 5 September 2014 by men acting on behalf Sheikh Saud bin Saqr Al Qasimi, the Ruler of RAK (“the Ruler”) and taken, without proper legal process, from Dubai to RAK, where he has been detained ever since. He was subsequently tried, convicted of fraud, and sentenced to imprisonment in a number of cases in the RAK courts. He contends that he is innocent of any wrongdoing, was wrongfully convicted in a politically motivated trial, and has therefore also been wrongfully imprisoned.
Dechert LLP (“Dechert-UK”) is a law firm organised as a limited liability partnership registered in England and Wales, based in London. It is part of the international network of a large and well-known law firm operating under the business name “Dechert”, originally founded in Philadelphia and operating there and in a number of other locations, including Dubai, through a Pennsylvania limited liability partnership, the full legal name of which is also Dechert LLP (“Dechert-US”).
Dechert-UK is a firm of solicitors, authorised and supervised by the Solicitors Regulation Authority. References in this judgment to “Dechert” are to the international law firm as a whole, where it is not necessary to distinguish between Dechert-UK and Dechert-US.
With effect from 5 June 2013, Dechert, through its Dubai office, entered into an engagement letter (“the 2013 Engagement Letter”) with the Investment and Development Office of the Government of RAK (“RAK IDO”) to assist with what the defendants say was a wide-ranging investigation concerning alleged fraud and misappropriation of public assets in relation to transactions carried out by subsidiary companies of RAKIA (“the Investigation”).
The defendants were instructed that the suspected principal mover behind the alleged fraud and misappropriation of public assets was Dr Khater Massaad. Dr Massaad was the Chairman and Chief Executive Officer (“CEO”) of RAKIA from its establishment in 2005 until 2012. He is said to have fled the UAE in 2012 and was subsequently tried and convicted in absentia by the RAK courts for a range of fraud, bribery and embezzlement offences. A number of individuals were alleged to have participated in this wrongdoing, including Mr Al Sadeq and Mr Quzmar. RAKIA considered that Dr Massaad and his associates had perpetrated systematic and wide-ranging frauds against RAKIA and associated entities, with losses amounting to hundreds of millions of dollars (“the Alleged Fraud”).
The general scope of Dechert's engagement is set out in an introductory paragraph of the 2013 Engagement Letter as follows:
“… to act as legal counsel to [RAK IDO] in connection with an investigation into certain historical transactions carried out by subsidiary companies controlled by [RAKIA], on the instruction of Dr. Khater Massaad, particular in relation to activities and investments in Georgia and India, together with any other transactions that are identified by the task...
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