Privilege-Hunting as an Abuse of Process: Covertly Targeting an Opponent’s Solicitor Justifies Discharge of Freezing Orders

Case: Salinas Pliego & Anor v Astor Asset Management 3 Ltd & Ors [2026] EWCA Civ 940
Court: Court of Appeal (Civil Division) (Males LJ, Phillips LJ, Foxton LJ)
Date: 21 July 2026
Appeal from: Stephen Houseman KC (Deputy High Court Judge), Commercial Court [2025] EWHC 2968 (Comm)

1. Introduction

This decision confronts “privilege hunting”: obtaining, or attempting to obtain, an opponent’s confidential and legally privileged material through dishonest means, for use in English civil litigation.

The claimants (a Mexican businessman and a related company) pursued civil fraud and contract claims arising from a stock-lending transaction involving shares said to be worth far more than the loan advanced. While the substantive dispute concerned alleged deceit and misappropriation, the appeals were driven by litigation conduct: the claimants retained “Black Cube”, an investigations firm, to conduct a covert “sting” targeting X, a solicitor-partner at the defendants’ solicitors with conduct of the case.

Posing as an intermediary for a lucrative new client, a Black Cube operative induced X to meet (including in Amsterdam), eliciting sensitive information on the defendants’ litigation strategy, perceived weaknesses, settlement posture, and the impact of worldwide freezing orders (“WFOs”). Meetings were secretly recorded and the recordings were provided to the claimants. The claimants’ new solicitors later exhibited those recordings in support of a summary judgment application.

The defendants responded by seeking to strike out the claim for abuse of process (and, alternatively, to discharge the freezing orders). The Deputy Judge found an abuse but struck out only the summary judgment application, deferring questions of privilege/iniquity and fair trial risk. Both sides appealed: the claimants denied abuse (or said it could not be found absent resolving the “iniquity exception”); the defendants sought strike-out of the entire action.

2. Summary of the Judgment

• Abuse established: Covertly targeting the opposing solicitor by deception to extract privileged/confidential information for litigation advantage is a “very serious” abuse of the court’s process.
• Iniquity exception not a shield to abuse finding: Even if some material might later be found to fall within the iniquity exception, that would not negate the abusive character of the operation (nor could the claimants have known this when authorising it).
• Summary judgment not appropriate: The Deputy Judge was right to prevent summary judgment proceeding; granting it would reward abuse. The Court of Appeal noted it could have been dismissed under CPR 24.3(b) (“compelling reason for a trial”).
• But the first-instance response was insufficient: Striking out the summary judgment application alone did not adequately reflect the gravity of the abuse and depended on the “happenstance” that such an application had been made.
• Proportionate response identified: The Court of Appeal ordered discharge of all freezing orders obtained by the claimants, leaving the underlying claim to proceed to trial.
• Equitable/discretionary relief at trial: The trial judge should consider whether and to what extent the abuse affects any entitlement to equitable/discretionary remedies (including proprietary equitable claims, equitable compensation, interest, and costs).

3. Analysis

3.1 The legal framework: what is “abuse of process”?

The Court anchored the concept in Lord Diplock’s classic statement in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13, [1982] AC 529: the inherent power to prevent misuse of procedure that is “manifestly unfair” or brings justice into disrepute, with categories not closed. The Court endorsed the Supreme Court’s treatment of abuse in Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004, including that abuse can be found even where the court can still decide the merits reliably.

Critically, the Court rejected a rigid taxonomy separating “quality of behaviour” abuses from “impact on proceedings” abuses. The present case involved profound impact on the proceedings: change of representation, satellite hearings, delay, increased costs, continued WFOs, and—most significantly—irreversible acquisition of the opponent’s strategic thinking.

3.2 Precedents cited and how they shaped the decision

(a) Abuse, fairness, and “forfeiture”

• Raja v Van Hoogstraten [2006] EWHC 1315 (Ch)
  Used to illustrate extreme abuse where misconduct (including, on findings, ordering a murder) had a direct nexus to gaining litigation advantage. The Court of Appeal emphasised nexus: abuse must relate to the proceedings being “abused”.
• Arrow Nominees Inc v Blackledge [2001] BCC 591
  Central to the Court’s articulation of fairness beyond truth-finding: fairness includes avoiding “hijacking” the trial with investigations into fraud affecting litigation itself, and conserving finite court resources. The Court deployed this broader fairness lens to show why privilege hunting harms the administration of justice even if a trial could still occur.
• Masood v Zahour [2009] EWCA Civ 650, [2010] 1 WLR 650
  Cited for the proposition that striking out can prevent waste of resources where a party has forfeited the right to have proceedings determined.
• Summers v Fairclough Homes Ltd [2012] UKSC 26
  Provided the Court’s three guiding principles for response: protect the court’s process (not punish), deter, and ensure proportionality. It also reinforced that strike-out is a “last resort” and requires scrupulous proportionality analysis.

(b) Privilege: its constitutional weight and the iniquity exception

• Southwark and Vauxhall Water Co v Quick (1878) 3 QBD 315
  An early statement of the societal importance of privilege, cited to ground its enduring policy rationale.
• R v Derby Magistrates' Court, ex parte B [1996] AC 487
  Privilege as “a fundamental condition” for administration of justice.
• R (Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax [2002] UKHL 21, [2003] 1 AC 563
  Privilege as a “fundamental human right” and corollary of obtaining legal advice.
• Al Sadeq v Dechert LLP [2024] EWCA Civ 28, [2024] KB 1038
  The Court relied on this as the modern exposition of the iniquity exception: communications are not privileged if brought into existence as part of or in furtherance of iniquity, but only where the iniquity amounts to an abuse of the normal lawyer-client relationship (i.e., outside the “ordinary course” of professional engagement).
• Supporting authorities within Al Sadeq’s analysis (as cited in the judgment):
  JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm); Candey Ltd v Bosheh [2022] EWCA Civ 1103, [2022] 4 WLR 84; R v Snaresbrook Crown Court, Ex p Director of Public Prosecutions [1988] QB 532; R v Central Criminal Court, Ex p Francis & Francis [1989] AC 346.
  The Court of Appeal here used these not to decide iniquity, but to show that iniquity is a sophisticated doctrine and cannot be assumed ex ante to justify a covert operation.

(c) Illegality/unlawfulness in gathering evidence and suitable judicial responses

• Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349, [2021] CLC 715 (“RAKIA”)
  Heavily discussed because the claimants relied on it by analogy (unlawfully obtained material). The Court distinguished it: in RAKIA, hacked materials (subject to privilege) were in substance disclosable anyway; hacking merely accelerated receipt. Here, the information extracted from X would never have been available through ordinary disclosure. The Court also rejected “costs penalties” as an adequate response given the claimants’ willingness to spend millions for the intelligence.
• Hamilton v Al Fayed (No. 2) [2000] EWCA Civ 3012, [2001] EMLR 15
  A case involving privileged documents taken from counsel’s rubbish. Cited to show that even where privileged material is improperly obtained, the appropriate remedy depends on advantage gained and proportionality; strike-out is not automatic.
• Dadourian Group International Inc v Simms [2009] EWCA Civ 169, [2009] 1 Lloyd's Rep 601
  Used as a comparator: even deliberate suppression of documents does not generate a default strike-out rule; proportionality still governs.
• Federal Republic of Nigeria v Process & Industrial Developments Ltd [2025] EWCA Civ 715
  Cited for the characterisation of obtaining and retaining an opponent’s internal legal documents as “clearly corrupt behaviour”. The Court treated the present conduct—suborning a solicitor by deception—as a comparable form of corruption.
• St Merryn Meat Ltd v Hawkins (unreported, 29th June 2001)
  Deployed (in adapted form) to justify discharging WFOs where an applicant acts in bad faith: the court must deprive the applicant of advantages derived from serious breaches, even if that creates enforcement risk.
• Catalyst Capital Group Inc v Westface Capital Inc (2021) ONSC 7957
  Not an English authority but a factual comparator evidencing Black Cube-style tactics (attempting to entrap a retired judge). It was used to demonstrate the nature of such operations and the incentives created by large contingent success fees.
• Bourlakova v Anufriev [2026] EWHC 1747 (Ch)
  Mentioned postscript: a different form of privilege hunting; nothing in it altered the Court’s analysis.

3.3 The Court’s legal reasoning

(a) Why this was abuse of process

The Court’s conclusion was blunt: deliberately deceiving the opposing party’s solicitor to obtain confidential and privileged litigation information, then using it for forensic advantage, is “cheating the system” and undermines the “level playing field” civil litigation requires. The nexus to proceedings was direct: the aim was litigation advantage; the product was strategic insight; the consequences included satellite litigation and disruption of representation.

The Court also rejected two attempted deflections:

• X’s culpability: the solicitor’s error did not break the chain; it was the very object of the operation. The claimants could not plausibly argue the operation should have yielded “nil return”.
• Potential iniquity exception: even if some information ultimately lacked privilege, the abusive act was the dishonest targeting and extraction itself, undertaken without knowing whether privilege would attach.

(b) Why the first-instance response was wrong in part

The Court accepted the Deputy Judge was right to prevent summary judgment proceeding: it would have rewarded abuse; and the application was at least partly “precipitated” by the sting material. The Court noted a cleaner route would have been to dismiss under CPR 24.3(b) (a “compelling reason” for trial).

But the Court held the Deputy Judge’s overall response was flawed because:

• Insufficiency and arbitrariness: striking out a particular interlocutory application did not match the seriousness of the abuse and depended on the accident of that application existing.
• Failure to grapple with unlawfulness: the Deputy Judge’s premise that there was “nothing unlawful” was doubtful; the Court indicated the conduct was “obviously a civil wrong” and may have amounted to offences under section 2 of the Fraud Act 2006, with possible consideration also of section 1 of the Bribery Act 2010 (though not finally determined).
• Overlooking a targeted and proportionate alternative: discharging the WFOs was on the table (the defendants had applied), directly engaged the discretionary nature of freezing relief, and corresponded to the nexus between the abuse and the continuation of those orders.

(c) Why discharge of freezing orders was proportionate

The Court treated discharge as both principled and fact-sensitive:

• Discretionary relief requires clean hands / good faith in its pursuit: the Court reasoned that, had the judge continuing the WFOs known about an ongoing covert operation suborning the defendants’ solicitor, the orders would not have been continued.
• Material non-disclosure logic extended: while the strict “full and frank disclosure” duty is classically tied to without-notice applications, the Court emphasised the claimant cannot rely on the defendant being “on notice” where the claimant knows highly material facts that the defendant cannot possibly know.
• Nexus with freezing pressure: one of the benefits extracted from X concerned the impact of the WFOs on the defendants’ banking relationships—an example of the sting monetising the very coercive effect of the freezing relief.
• Deterrence: stripping the benefit of freezing relief sends a clear signal that privilege hunting will have concrete procedural consequences, beyond indemnity costs.

The Court acknowledged the practical enforcement risk to the claimants if assets dissipate, but held that risk did not outweigh the need to protect the court’s process in the face of flagrant litigation misconduct.

3.4 Impact

(a) A clear condemnation of “privilege hunting”

The judgment supplies a strong appellate-level statement that covert operations designed to elicit privileged/confidential information from an opponent’s legal team are an abuse of process and “should have no place” in litigation in England and Wales.

(b) Remedies: strike-out is not automatic, but meaningful consequences are required

The Court refused to create a default rule that privilege hunting must lead to strike-out. Instead, it reaffirmed proportionality and the last-resort nature of strike-out. Nonetheless, it also made plain that merely procedural “slaps on the wrist” (costs alone; exclusion of evidence alone) may be inadequate where the misconduct is grave and irreversible in effect.

Discharge of WFOs is positioned as a particularly apt response where: (i) the applicant has engaged in serious litigation abuse; (ii) the court’s continued grant of discretionary coercive relief would be seen as endorsing or rewarding that conduct; and (iii) the abuse has a nexus to the maintenance or exploitation of freezing pressure.

(c) Equitable relief and “clean hands” consequences at trial

The Court explicitly reserved to the trial judge the power to refuse or limit equitable/discretionary relief (proprietary equitable claims, equitable compensation, interest, costs) by reference to the claimants’ misconduct once the “full extent” is established through disclosure and cross-examination. This signals that abuse may affect not merely interlocutory skirmishes but end-stage remedial outcomes.

(d) Professional and compliance implications

While the Court did not determine criminality, it expressly flagged the possibility that similar conduct may engage criminal statutes (Fraud Act 2006; potentially Bribery Act 2010). The postscript is a practical warning to litigators: receiving and deploying such material carries not only professional responsibility concerns but also the risk of facilitating client benefit from criminal offences. This is likely to influence internal firm governance, evidence triage protocols, and decisions on whether to act (or continue to act) where such material is offered.

4. Complex Concepts Simplified

4.1 Legal professional privilege (LPP)

LPP protects confidential communications for legal advice and litigation. Its purpose is systemic: clients must be able to speak candidly with lawyers without fear the opponent will obtain those communications. It is therefore treated as foundational to the rule of law, not merely an evidential technicality.

4.2 The “iniquity exception”

The iniquity exception is often misunderstood as “privilege falls away if wrongdoing is involved”. The Court reiterated (via Al Sadeq v Dechert LLP) that privilege is not lost merely because a client is dishonest. The exception applies only where the communication is itself part of, or in furtherance of, iniquity that abuses the normal lawyer-client relationship (i.e., outside ordinary legal work). Importantly here, even if some communications ultimately fall within the exception, that does not retrospectively justify a covert privilege-hunting operation.

4.3 Worldwide freezing orders (WFOs) and undertakings in damages

A WFO is a powerful interim remedy restraining a defendant’s dealings with assets to prevent dissipation. Because it is discretionary and coercive, the applicant is expected to act with scrupulous propriety. Applicants typically give an undertaking in damages—promising to compensate the defendant if the order should not have been granted/continued. Here, the Court’s discharge of the WFOs leaves open applications to enforce those undertakings.

4.4 Abuse of process: protection, not punishment

The Court emphasised the response is aimed at protecting the integrity of the court’s processes (and deterring similar conduct), not punishing the party as such. The distinction matters because it drives proportionality: the court calibrates remedies to safeguard justice system integrity while avoiding overreaction that would itself be unjust.

5. Conclusion

[2026] EWCA Civ 940 stands as a leading warning against “privilege hunting” in English civil litigation. Covertly targeting an opponent’s solicitor through deception to extract privileged/confidential litigation intelligence is a serious abuse of process. The Court refused to adopt an automatic strike-out rule, reaffirming proportionality and the last-resort nature of strike-out, especially where there is a strong underlying fraud claim. But it equally rejected token responses: where such abuse occurs, the court must adopt a response that meaningfully protects the integrity of proceedings and deters repetition.

On these facts, the proportionate response was the discharge of all freezing orders—a remedy directly tied to the discretionary nature of freezing relief and the nexus between the abuse and the coercive pressure such orders create. The claim proceeds to trial, but the claimants’ misconduct remains relevant: the trial judge may yet limit or deny equitable/discretionary relief, interest, and costs. The judgment also sends a wider message to litigants, investigators, and legal advisers: English courts will not tolerate covert operations that corrupt the confidentiality on which the justice system depends.