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Privilege & the crime-fraud exception

29 January 2021 / Nick Barnard
Issue: 7918 / Categories: Features , Privilege
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Crime, fraud & iniquity: how can an allegation of wrongdoing override legal professional privilege? Nick Barnard examines the evidence
  • The High Court’s judgment in Addlesee v Dentons Europe provides much-needed insight into the use of the crime-fraud exception (CFE) to sidestep legal professional privilege.
  • The decision also clarifies the necessary strength of the prima facie evidence in such a case, and identifies areas in which CFE may currently be misapplied or underutilised.

Legal professional privilege (LPP) is a common currency for lawyers and clients of every discipline. Even in the most amiable transactional work, a lawyer should know whether the advice and communications are privileged or, perhaps more importantly, whether the client expects them to be privileged. Subject to narrow public interest exceptions (for example, where the matter concerns a risk of serious harm) or clear statutory intent, LPP is an absolute right. A court cannot decide that LPP should be overridden, no matter the strength of the competing arguments. This is even the case where the privileged material might assist

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NEWS
Artificial intelligence may be revolutionising the law, but its misuse could wreck cases and careers, warns Clare Arthurs of Penningtons Manches Cooper in this week's NLJ
Bea Rossetto of the National Pro Bono Centre makes the case for ‘General Practice Pro Bono’—using core legal skills to deliver life-changing support, without the need for niche expertise—in this week's NLJ
Small law firms want to embrace technology but feel lost in a maze of jargon, costs and compliance fears, writes Aisling O’Connell of the Solicitors Regulation Authority in this week's NLJ
Charles Pigott of Mills & Reeve reports on Haynes v Thomson, the first judicial application of the Supreme Court’s For Women Scotland ruling in a discrimination claim, in this week's NLJ
The Supreme Court issued a landmark judgment in July that overturned the convictions of Tom Hayes and Carlo Palombo, once poster boys of the Libor and Euribor scandal. In NLJ this week, Neil Swift of Peters & Peters considers what the ruling means for financial law enforcement
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