Legal privilege, Articles 6 and 8, and iniquity

12 August 2014 by

464795356JSC BTA Bank v. Ablyazov et al 8 August 2014, Popplewell J,  read judgment  

What you say to your lawyers is truly confidential; no-one, not even a regulator or prosecutor can see it. This is protected by the right to privacy under Article 8, and the right to a fair trial under Article 6 (which includes the right to access to lawyers).

Well, that is the general rule. And this case reminds us that there is an exception to this – when the relationship between client and lawyer is affected by “iniquity”.

As we will see, Mr Ablyazov fell foul of this exception, and papers which he sent to his various solicitors have been ordered to be produced. As we will also see, he appears to be a very bad boy indeed. It is however more difficult to draw the line between his sort of case and that in which a defendant says he has a defence, though in the end is disbelieved by the court.

And one interesting aspect of this judgement is Popplewell J’s clear explanation of this difference – a fine line indeed.

So now to Mr Ablyazov, and his badness.

Mr Ablyazov was chairman of a Kazakstan bank between 2005 and 2009. In that time he and others appear to have helped themselves of to more than $6 billion of its assets. The Bank has obtained judgment for $4.6bn to date, with further proceedings ongoing. Mr A’s account that the claims are politically motivated has not found favour.

It is of course one thing for the Bank to get a judgment, another thing to enforce it. And so the Bank has been very busy seeking to preserve assets in which Mr A is interested. To say the least, they have not been helped by Mr A.

Popplewell J (as the latest of a series of judges not mincing their words) concluded that Mr A, from the first point when he instructed solicitors,

was bent on a strategy of concealment and deceit in relation to his assets which would involve perjury, forgery and contempt as and when such was required for that purpose

It was no part of the Bank’s case that the three eminent City firms of solicitors were party to this strategy, but, the judge found, they were unwittingly used by Mr A to further it. So, for example, he fraudulently backdated a transaction to suggest that he had disposed of his interest in Moscow property worth about $500 million. He set up approaching 1,000 companies of whose existence he did not tell the Bank despite court orders telling him to disclose his assets. And he was found many times over to be in contempt of court for which he was sentenced to various terms of imprisonment. Unsurprisingly he did not hang around in England to serve them, though in the end was arrested in the south of France in 2013, at the request of the Government of Ukraine. Extradition proceedings are ongoing, and he is currently languishing in prison near Lyon.

The judgment: disclosure

Legal professional privilege goes back a long way, at least as far as the 16th century. People must be able to consult their lawyers in confidence, because otherwise they may only tell half the truth. And privilege does not disappear simply because the client tells his lawyer a deliberately untrue story, with a view to convincing a court of it. But it does disappear if there is a widespread conspiracy to deceive the court.

The justification for the distinction is that communications with lawyers furthering an iniquitous purpose negate the necessary condition of confidentiality, and amount to an abuse of the ordinary course of a professional engagement of a solicitor.

But how to draw the line? The judge sought to do so at [93]

In cases where a lawyer is engaged to put forward a false case supported by false evidence, it will be a question of fact and degree whether it involves an abuse of the ordinary professional engagement of a solicitor in the circumstances in question. In the “ordinary run” of criminal cases the solicitor will be acting in the ordinary course of professional engagement, and the client doing no more than using him to provide the services inherent in the proper fulfilment of such engagement, even where in denying the crime the defendant puts forward what the jury finds to be a bogus defence. But where in civil proceedings there is deception of the solicitors in order to use them as an instrument to perpetrate a substantial fraud on the other party and the court, that may well be indicative of a lack of confidentiality which is the essential prerequisite for the attachment of legal professional privilege. The deception of the solicitors, and therefore the abuse of the normal solicitor/client relationship, will often be the hallmark of iniquity which negates the privilege.

So, no easy answer then. But cases in which privilege does not attach for this reason will be rare. It is the concerted attempt to deceive both lawyer and court that appears to be the hallmark of the exception.

At [94]ff, the judge addressed the human rights arguments advanced by Mr A. The right of privacy under Article 8 attaches because the communication involves confidence. And if there is an abuse of the relationship between client and solicitor, there is no such confidence, and further, interference with any rights may be justified.

The judge rejected a submission that it would break new ground in Strasbourg case law to allow the purely economic claim by the Bank to override privilege – namely that there could never be a necessary or proportionate interference with a defendant’s rights. As he countered, the Bank had important private rights not “to have its property stolen”, and there were also public interests in play namely the administration of justice and the rule of law. Rule of law is at the heart of the legitimate aims articulated in Article 8(2). Hence (at [94])

 If a person sets out to abuse the lawyer client relationship in a concerted attempt to pervert the course of justice and thwart the legal process, it is necessary to permit sight of the communications by which he seeks to further that purpose, in pursuit of the legitimate aim of upholding the efficacy of the administration of justice and the rule of law.

Similarly, at [97], having accepted that privilege is an important element of the right to access to lawyers, the judge concluded that it was “self evident” that Article 6 rights could not invoked to protect communications aimed at the very opposite of securing a fair trial, namely

the perversion of the course of justice by concealment, perjury and the defiance of court orders.

The judge’s conclusions on the facts (namely that there was a strong prima facie case of iniquity in respect of the asset strategy) did not mean that all communications with the solicitors were opened up, only those which could be said to be in furtherance of the iniquitous purpose. Hence anything about current and former assets fell into this category. But what about documents with a dual purpose, partly iniquitous, partly legitimate? At [107], the judge concluded that privilege would only attach if the dominant purpose was the conduct of litigation independently of the iniquitous asset and concealment strategy.

The privilege against self-incrimination

There is a common law privilege (recognised and confined by section 14 of the Civil Evidence Act 1968) against self-incrimination in respect of UK criminal offences.

There is also a discretion to refuse disclosure of documents which might give rise to a danger of proceedings abroad: [113]. Mr Ablyazov sought to rely on this privilege as a reason not to give disclosure of his solicitors’ files. 

The judge rejected this. There was one major limitation on the scope of this privilege, namely that it only attaches to documents ordered to be generated in proceedings (not documents which exist independently of such orders) – see [115], where the judge follows an earlier conclusion of his own in related proceedings. That conclusion destroyed the claim for privilege against self-incrimination.


Mr A argued that the complexity of the disclosure exercise stood against the making of such an order. The three firms of solicitors between them hold the best part of 2 million electronic documents and thousands of boxes of paper. All this would be have to be gone through to decide which should be produced because it was in furtherance of the iniquitous purposes – an exercise which might cost £2.5m or so. And this was unlikely to reveal anything of use to the Bank.

The judge was unpersuaded. The documents to be produced might help the Bank, and the sums at stake (over $4 billion unrecovered) warranted it.


Despite these conclusions, legal privilege is a powerful principle not readily overridden by the courts. Only the truly bad boys and girls are likely to fall foul of the iniquity exception, despite the apparent fine line between a lying defendant and iniquity of the type seen here.

Also note the increasingly common response of the courts to human rights arguments. This is, in effect, that domestic principles (here, when privilege does or does not apply) have sufficiently “internalised” HR principles such that acceptance or dismissal of the former leads to acceptance or dismissal of the latter.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

More on this topic:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: