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29 January 2021 / Nick Barnard
Issue: 7918 / Categories: Features , Privilege
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Privilege & the crime-fraud exception

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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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MOVERS & SHAKERS

Harneys—Maggie Kwok & George Weston

Harneys—Maggie Kwok & George Weston

Harneys senior leadership appointments

Freeths—Keith Browne & Jim Jordan

Freeths—Keith Browne & Jim Jordan

Freeths strengthens London Construction and Engineering practice with two strategic senior hires

Anthony Collins—Laura Moss

Anthony Collins—Laura Moss

Anthony Collins announces strategic hire to deepen skills base in the social business sector

NEWS
More than 100 teams from the legal and financial services sectors competed in five sports at the 51st Law Society RFC Festival of Sport earlier this month
Part-time status need only be an effective cause of less favourable treatment, rather than the sole cause, the Supreme Court has held in Augustine v Data Cars
Britain’s new acknowledgement that Israel’s occupation is unlawful, and accompanying settlement-goods ban and sanctions, is significant but overdue, argue Danny Friedman KC and Victor Kattan in NLJ this week
New planning fee rises, wider trade union access rights and a service-by-email trap feature in Stephen Gold’s latest Civil Way
Existing defamation law can respond to AI ‘hallucinations’, but allocating responsibility will prove harder where outputs reach users without human intervention
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