Karam Salah Al Din Awni Al Sadeq v Dechert LLP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Lord Justice Males,Lord Justice Underhill |
| Judgment Date | 24 January 2024 |
| Neutral Citation | [2024] EWCA Civ 28 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001145 (and 001145-A) |
[2024] EWCA Civ 28
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Males
and
Lord Justice Popplewell
Case No: CA-2023-001145 (and 001145-A)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MR JUSTICE MURRAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Tamara Oppenheimer KC and Simon Paul (instructed by Stokoe Partnership Solicitors) for the Appellant
Philip Edey KC, Luke Pearce KC and Sandy Phipps (instructed by Enyo Law LLP) for the First and Third Respondents
Hearing dates: 11, 12 and 13 December 2023
Approved Judgment
This judgment was handed down remotely at 2:00 pm on 24 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal raises a number of important points of law about the scope of legal professional privilege, both litigation privilege and legal advice privilege, and the so called ‘iniquity exception’. The appeal is from an order of Murray J dated 19 June 2023 following a judgment handed down on 5 April 2023. The Judge dismissed the claimant's application challenging assertions of legal professional privilege made by the defendants, save in one respect. The claimant appeals against that decision. The defendants cross appeal in relation to the one issue which was decided against them.
The parties
The claimant, Mr Al Sadeq, is a Jordanian citizen and a Jordanian qualified lawyer, now in his early 40s. In November 2008 he started working as legal adviser for the Ras Al Khaimah Investment Authority (‘RAKIA’), the sovereign wealth fund of the Emirate of Ras Al Khaimah (‘RAK’). RAK is one of the United Arab Emirates, and is ruled by a Sheikh. The current ruler is Sheikh Saud bin Saqr al-Qasimi (‘the Ruler’), whose coronation took place in October 2010 following the death of his father, who had ruled for 62 years. Unlike some of the other Emirates, RAK does not have significant oil reserves, and has focussed on creating an economy with a significant industrial sector. The RAK government, and government-owned companies, have played a significant role in RAK's economy.
Mr Al Sadeq was promoted to group legal director of RAKIA in 2010 and became Deputy CEO in June 2011. He resigned from RAKIA in late 2012, moving to Dubai in or around December 2012, where he established an investment business. The Chairman and CEO of RAKIA from the date it was established in 2005 until 2012 was Dr Khater Massaad, a Swiss-Lebanese engineer.
RAKIA contends that in or about 2012, it discovered that Dr Massaad had perpetrated systematic and wide ranging frauds against RAKIA and associated entities; and that, together with a number of associates, he had been responsible for misappropriating funds and otherwise causing losses of hundreds of millions of dollars.
Mr Al Sadeq was arrested at his home in Dubai on 5 September 2014 and taken from Dubai to RAK, where he has been detained ever since. He was tried in RAK, convicted of fraud, and sentenced to imprisonment in a number of cases before the RAK courts. He contends that he is innocent of any wrongdoing and was wrongly convicted in politically motivated trials.
The first defendant, Dechert LLP (‘Dechert UK’), is a law firm organised as a limited liability partnership registered in England and Wales and based in London. It is part of the international network of a large and well known global law firm operating under the business name ‘Dechert’, originally founded in Philadelphia, and operating there through a Pennsylvania limited liability partnership, the full legal name of which is also Dechert LLP (‘Dechert US’). It has affiliated offices in a number of other locations worldwide, including Dubai. I shall refer to the global law firm as a whole as ‘Dechert’ save where it is necessary to identify the particular legal entity involved.
Dechert was engaged in 2013 to assist in an investigation of the activities of Dr Massaad and others in relation to what were said to be the suspected frauds. I shall return to the terms and scope of the engagement and the identity of Dechert's clients.
The second defendant, Mr Gerrard, was at the material times a partner of Dechert UK, having joined the firm in 2011 from the law firm DLA Piper. He retired as a partner of Dechert UK on 31 December 2020. He was the global co-head of Dechert's white collar and securities litigation practice, and was the lead partner involved in the investigation which forms the subject matter of the present proceedings. The third defendant, Mr Hughes, is also a former partner of Dechert UK, having joined the firm in mid-September 2014. He moved to another law firm in June 2017. The fourth defendant, Ms Black, joined Dechert UK as a senior associate some time in 2011, becoming a partner on 1 January 2015. She left Dechert UK in February 2023.
At the hearing before the Judge, all four defendants had single legal representation by Enyo Law LLP (‘Enyo’) and counsel. Mr Gerrard and Ms Black have subsequently become separately represented. They are respondents to the appeal, but have been content for the argument to be addressed by those representing Dechert and Mr Hughes, without themselves participating in the appeal hearing.
Dechert's engagement
Dechert was first appointed under the terms of a letter of engagement dated 5 June 2013 (‘the 2013 Engagement Letter’) addressed from Dechert US, through the local Dubai office, to the Investment and Development Office of the government of RAK (‘RAK IDO’). It was countersigned by the director of legal affairs at RAK IDO. RAK IDO was established in 2004 and is the investment arm of the government of RAK. There was no evidence before the Judge, or before us, as to the constitutional position of RAK IDO within RAK, but it seems that it was not a separate legal entity and was simply an arm of the RAK government.
The 2013 Engagement Letter identified that Dechert had been asked 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, particularly in relation to activities and investments in Georgia and India, together with any other transactions that are identified by the task force appointed by [RAK IDO]”. The letter said that instructions would be received from members of the “IDO task force”. The letter identified that the Dechert team would be led by Mr Gerrard, who would be responsible for its overall supervision, and would include, amongst others, Ms Black, who was then a senior associate. The scope of work was defined in paragraph 3, which said that the initial scope of work would be as set out in Schedule 2. Schedule 2 has been wholly redacted in the copy of the 2013 Engagement Letter which has been disclosed. Paragraph 3 of the letter went on: “Though we will be providing strategic input and guidance in relation to the investigation, and providing legal professional privilege, please note that any specific legal advice we provide shall be limited to English, Georgian, UAE and US law. As the investigation progresses a more detailed scope of work will be discussed and agreed with you based on the findings during our initial work phase.”
The curious reference to legal professional privilege as something that Dechert would be “providing” is explained by Mr Allen, the partner of Enyo with day to day responsibility for the conduct of the proceedings, as infelicitous drafting, seeking to convey that the work Dechert would carry out would engage legal professional privilege.
In 2014 a further engagement letter was sent dated 12 October 2014 (‘the 2014 Engagement Letter’). That was also sent by Dechert US through its Dubai office, this time addressed to the Ruler, and countersigned by him. It described itself as “Master Letter of Engagement – with effect from 1 September 2014”. In its opening paragraph it recorded that “prior to the date of this letter our firm was providing legal services to various entities within the Government of Ras Al Khaimah in relation to corporate, restructuring, investigation and litigation matters. Following a decision of [the Ruler] responsibility for those matters has been transferred to Ras Al Khaimah Development LLC (‘RAK Development’).” RAKIA's pleadings in other proceedings state that RAK Development, which as its name suggests is a separate legal entity as a limited liability company under UAE law, was responsible for (amongst other things) the holding and managing of various assets such as shares, properties and loans which had previously been owned by RAKIA, including the assets which RAKIA alleges were the subject of significant frauds and other wrongdoing committed by Dr Massaad and associates of his.
The 2014 Engagement Letter said that its purpose was to confirm Dechert's continued instructions and to use the opportunity to “refresh and update both the description of the matters on which we have been and will continue to be working…”. The letter continued: “We will prepare a common interest agreement to be entered into by RAK IDO and RAK Development that will address the issue of legal professional privilege and its preservation in the context of the transfers noted above (including in relation to pre transfer work undertaken by third party advisers). In particular the agreement will formally reflect and confirm the common interest privilege which exists in relation to all relevant RAK parties.” There is no further evidence before the court about the existence or terms...
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A Must-Read On Legal Privilege
...of Appeal judgment in Al Sadeq v Dechert (and others) [2024] EWCA Civ 28 is a must-read for litigators, in-house lawyers and anyone else who may become involved in English litigation, especially following an investigation, for its discussion of legal privilege (as well as for the extraordin......