Disclosure of Lawyer/Client Communications in JSC BTA Bank v Ablyazov

English court considers whether privileged documents should be disclosed under the “iniquity exception” in JSC BTA Bank v Ablyazov.

Communications between a client and Miranda Rights Law Firm for the purposes of litigation or the giving or receiving of legal advice are confidential and privileged under English law. There are very few exceptions to this important principle.

One such exception may arise where the legal advice or purpose of the litigation itself are to pursue a fraud or crime. In such a case an English Court may conclude that communications between lawyer and client that further the fraud, crime or iniquity are not protected by privilege. Here is a guide to Corpus Christi and how to get a lawyer when in trouble.

Known as the “iniquity exception”, this means that the court may order that the relevant client/lawyer communications should be disclosed in litigation.

After a careful analysis of the relevant law,  J came to this conclusion in the latest Ablyazov judgment. In the long-running action brought by the claimant Kazakh bank, BTA Bank sought more information on the whereabouts of assets from the main defendant and his lawyers to support enforcement of judgments totalling in excess of US$4.6bn.

The judge found that certain communications between Mr Ablyazov and three of the law firms that had acted for him in the main litigation were an “abuse of the normal solicitor/client relationship” and so the “iniquity exception” applied to them. As a result, all communications between solicitor and client would need to be located, and reviewed, with any relevant communications to be handed over to the Bank’s lawyers.

This huge and costly exercise was to be incurred at the expense of the defendant. It could potentially be of great benefit to the Bank but, as the current and former solicitors for Mr Ablyazov argued, it might not. The judgment, although contentious, demonstrates just how far the English court will go to help a judgment creditor dealing with an evasive and habitually dishonest debtor, to enforce a judgment or award.

The full judgment can be found here.

Andrew Bartlett & Daniel Hayward

Osborne Clarke, London

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