New Merits Threshold for the ‘Iniquity Exception’? Latest Court of Appeal Judgment Considers Important Areas of Legal Privilege and Exposes the Difficulties of Applying the ‘Iniquity Principle’

In a judgment handed down earlier this year, the Court of Appeal provided detailed guidance on the relevant tests to be satisfied before a party may invoke the so-called “iniquity exception,” being the exception which lifts the cloak of privilege over communications with lawyers that are in furtherance of a crime or fraud. The Court of Appeal Judgment also clarified a number of important points of law regarding the scope of legal professional privilege. Significantly, the Court of Appeal found that litigation privilege can, in certain circumstances, extend to non-parties to proceedings (including alleged victims or witnesses) and that legal advice privilege may apply to investigatory work conducted by lawyers.

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