Legal professional privilege—the crime-fraud exception
Produced in partnership with Aine Kervick and Vivien Cochrane of Kingsley Napley LLP
Legal professional privilege—the crime-fraud exception

The following Corporate Crime practice note produced in partnership with Aine Kervick and Vivien Cochrane of Kingsley Napley LLP provides comprehensive and up to date legal information covering:

  • Legal professional privilege—the crime-fraud exception
  • The crime-fraud exception
  • When does it apply?
  • Communications made with a criminal purpose
  • ‘Iniquity’ as an exception to privilege
  • Timing
  • The 'dominant purpose test' and the iniquity exception
  • Proving iniquity in criminal investigations
  • Strong prima facie case
  • Alibi witnesses
  • More...

Legal professional privilege (LPP), which underpins the confidentiality of communications between lawyers and clients for specific purposes, is a fundamental right and, where it exists, is subject to very limited exceptions.

One of the ways to challenge LPP is to challenge that it exists in the first place. A key way of doing that is to rely on the crime-fraud or iniquity exception. This Practice Note considers this exception to LPP in more detail. For further guidance on what is LPP and how it is maintained in criminal investigations, see Practice Notes: Legal professional privilege in criminal proceedings and Maintaining privilege during criminal investigations.

The crime-fraud exception

When does it apply?

A claim to LPP cannot be made for communications which are made for the purpose of the client committing a crime or fraud or which themselves form part of a fraudulent act. This has also been described as the 'iniquity exception', which is a more accurate description since, as noted in JSC BTA Bank v Abylasov, it is not confined to criminal purposes but extends to other forms of iniquity. See further below: ‘Iniquity’ as an exception to privilege.

The principle of the crime-fraud exception applies to both legal advice and litigation privilege. It applies whether or not the solicitor is aware of the wrongful purpose.

Behind the exception lies the maxim that there is no confidence

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