In BBGP v Babcock6, the High Court held that the defendant limited partnership (Global) could not assert legal professional privilege against its former managing partner (General) where there was evidence of iniquity.
All parties were members of the same group of companies. In the process of separating out Global’s materials upon the appointment of a new managing partner, lawyers acting for the claimants found legal advice relating to General’s removal. Proceedings were commenced alleging that privilege had been waived over those documents.
The court held that every partner in Global had the joint right to see the advice but could not disseminate it further or use it in any claim. In this case, however, the iniquity principle was invoked: advice sought or given for the purpose of effecting iniquity is not privileged. The term ‘fraud’ is used in a relatively wide sense in the case law on iniquity, to denote cases where the wrongdoer has done something of an underhand nature where the circumstances require good faith. The conduct of General’s executive director (a group employee) when General was being removed amounted to a breach of his duty of fi delity to General. A declaration was therefore granted that General were entitled to inspect the documents.