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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

NLJ Career Profile: Stephen Ward, The Barrister Group

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Commercial property partner joins Clarke Willmott in Southampton

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Robert Tiffen joins Ellisons as Partner in growing Norwich office

NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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