- Bookmark
- Share
- CaseIQ
Salinas Pliego & Anor v Astor Asset Management 3 Ltd & Ors
Anonymised Summary of Judgment
Factual and Procedural Background
The Plaintiffs (a wealthy individual and a related company) alleged that the Defendants, a group of companies and individuals, induced them into a Stock Lending Agreement under false pretences and misappropriated valuable shares. The Plaintiffs obtained without-notice worldwide freezing orders and later commissioned Company A, a private investigative firm, to carry out a covert operation targeting a partner ("Solicitor") at the Defendants' former solicitors. Company A, posing as a prospective client, induced Solicitor to disclose confidential and potentially privileged information; the meetings were recorded and the recordings provided to the Plaintiffs. The Plaintiffs' original solicitors (Law Firm A) refused to view the material and were replaced by Law Firm B, who used the recordings when pursuing a summary judgment application. The Defendants applied to strike out the claim as an abuse of process and alternatively sought discharge of the freezing orders. At first instance Judge Houseman found the operation abusive, struck out the Plaintiffs' summary judgment application and deferred detailed determinations about privilege and admissibility to an "Information Review Hearing". The Plaintiffs appealed; the Defendants cross‑appealed seeking strike out of the claim and/or discharge of freezing orders. This Court heard the appeal.
Legal Issues Presented
- Whether obtaining an opponent's confidential and privileged information by dishonest covert means ('privilege hunting') constitutes an abuse of the process of the English court.
- If it is abuse, whether striking out the Plaintiffs' summary judgment application (as done by the Deputy Judge) was an appropriate and proportionate response.
- If not, what is the appropriate and proportionate response, including whether freezing orders obtained by the Plaintiffs should be discharged.
Arguments of the Parties
Appellant's Arguments
- The Deputy Judge was wrong to treat the conduct as a category of abuse concerned 'solely with the quality of behaviour' rather than requiring assessment of impact on the proceedings.
- The material obtained was not privileged or was within the iniquity exception; the Deputy Judge should have determined admissibility and entitlement before striking out the summary judgment application.
- The public interest in exposing fraud supported allowing the summary judgment application to proceed.
Respondent's Arguments
- The only appropriate sanction for suborning an opponent's solicitor to obtain confidential or privileged material is striking out the claim unless there are compelling reasons otherwise.
- The Deputy Judge erred by considering the Plaintiffs' prospects of success and by taking into account the Solicitor's culpability in mitigation of sanction.
- Deterrence required a severe response to privilege hunting.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Catalyst Capital Group Inc v Westface Capital Inc (2021) ONSC 7957 | Illustration of Company A's covert methods and comparable prior operation. | Used as an example of Company A's operational model and incentives in covert operations. |
| Raja v van Hoogstraten [2006] EWHC 1315 (Ch) | Example of extreme abuse where a direct nexus to proceedings justified striking out. | Distinguished and relied on to explain that direct nexus between abusive conduct and proceedings can justify striking out. |
| Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13, [1982] AC 529 | Classic exposition of the court's inherent power to prevent misuse of procedure (abuse of process). | Adopted as authoritative statement of the abuse‑of‑process jurisdiction guiding the analysis. |
| Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004 | Power to strike out for abuse after trial; emphasises proportionality and that striking out is a last resort. | Applied to underline proportionality and that striking out is a draconian remedy to be used only in exceptional cases. |
| Arrow Nominees Inc v Blackledge [2001] BCC 591 | Principle that a litigant who pursues proceedings to prevent a fair trial may forfeit the right to be heard. | Relied on in explaining when forfeiture of the right to litigate may be appropriate for abusive conduct. |
| R v Snaresbrook Crown Court, Ex p Director of Public Prosecutions [1988] QB 532 | Limits to the iniquity exception to privilege; distinguishes ordinary professional engagement from abuse. | Used in discussion of the iniquity exception and when privilege is displaced. |
| R v Central Criminal Court, Ex p Francis & Francis [1989] AC 346 | Shows that privilege may attach even when solicitor assists in dishonest litigation conduct, if within normal professional engagement. | Referred to when explaining the boundary of the iniquity exception. |
| JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm), [2014] 2 CLC 263 | Analysis of the principled basis for the iniquity exception to legal professional privilege. | Quoted for the principle that the iniquity exception prevents privilege arising where the communication lacks necessary confidentiality. |
| Al Sadeq v Dechert LLP [2024] EWCA Civ 28, [2024] KB 1038 | Application of the iniquity exception and statement that exception operates as preventing privilege arising. | Applied as the leading recent authority on the iniquity exception and the standard of proof required. |
| Candey Ltd v Bosheh [2022] EWCA Civ 1103, [2022] 4 WLR 84 | Application of the Ablyazov analysis to distinguish ordinary professional engagement from abusive iniquity. | Quoted in support of the exposition of the iniquity exception and its limits. |
| Southwark and Vauxhall Water Co v Quick (1878) 3 QBD 315 | Historical statement on the importance of legal professional privilege to administration of justice. | Cited to emphasise the foundational importance of privilege to the rule of law. |
| R v Derby Magistrates' Court, ex parte B [1996] AC 487 | Privilege described as central to administration of justice. | Referred to in support of the importance of protecting privilege. |
| 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 right to legal advice. | Invoked to stress the constitutional weight of privilege. |
| Federal Republic of Nigeria v Process & Industrial Developments Ltd [2025] EWCA Civ 715 | Example of court describing certain conduct as 'clearly corrupt behaviour' in relation to privileged material. | Used to support characterisation of the present conduct as a form of corruption. |
| Masood v Zahour [2009] EWCA Civ 650, [2010] 1 WLR 650 | Illustrates that striking out can prevent waste of court resources where claim based on forged/false material. | Referred to in context of resource and fairness considerations when misconduct threatens efficient trial. |
| Dadourian Group International Inc v Simms [2009] EWCA Civ 169, [2009] 1 Lloyd's Rep 601 | Example where deliberate suppression of disclosure did not automatically lead to striking out. | Relied on to show that striking out is not the automatic response to all forms of abuse. |
| Hamilton v Al Fayed (No. 2) [2000] EWCA Civ 3012, [2001] EMLR 15 | Case where documents obtained by improper means gave no advantage and did not require disqualification. | Used to illustrate that consequences depend on whether the abusive conduct produced an advantage. |
| Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349, [2021] CLC 715 ('RAKIA') | Consideration of public policy in exposing fraud and possible alternative responses to unlawfully obtained evidence. | Discussed to compare facts and to explain that RAKIA was not closely analogous where privileged human intelligence was obtained. |
| St Merryn Meat Ltd v Hawkins (unreported, 29 June 2001) | Authority supporting depriving a party of advantages derived from bad faith in interlocutory relief. | Quoted to support the proposition that a claimant in bad faith may be deprived of interim relief advantages. |
| Bourlakova v Anufriev [2026] EWHC 1747 (Ch) | Recent discussion of another form of 'privilege hunting'. | Noted as a subsequent decision; Court stated it did not affect the present views. |
Court's Reasoning and Analysis
The Court analysed whether covertly obtaining an opponent's confidential and privileged information by deception amounted to an abuse of process. It began from established authorities explaining the court's inherent power to prevent misuse of procedure and emphasised that abuse categories are not closed. The Court accepted the Deputy Judge's factual findings that Company A's operation, sanctioned by the Plaintiffs, used elaborate deceit to target Solicitor and to obtain recorded disclosures of confidential and privileged material, and that the Plaintiffs expected to benefit from that material.
The Court held that privilege and the solicitor‑client relationship are central to the administration of justice and that suborning an opponent's solicitor by deception to obtain confidential material is a serious corruption of the litigation process. It rejected the Plaintiffs' contention that abuse must always be framed solely by its impact on the possibility of a fair trial, finding instead that conduct can be abusive by reference to its quality and its effect on the integrity of the system even before final determinations on evidential admissibility.
On proportionality, the Court applied Summers and related authorities: striking out is a last resort and must be proportionate. The Court agreed that the Deputy Judge was right to refuse the Plaintiffs' summary judgment application because it relied, at least in part, on material obtained by abuse and because the iniquity exception and admissibility required detailed resolution at a fuller hearing. However, the Court found that striking out the summary judgment application alone understated the gravity of the Plaintiffs' conduct and overlooked an available and proportionate remedy: discharge of the freezing orders. The Court reasoned that the Plaintiffs knew (or must be taken to have known) of Company A's operation at or about the time they sought without‑notice freezing relief and that, had the court been informed, the discretionary freezing orders would not have continued. Discharging the freezing orders would deprive the Plaintiffs of advantages they obtained while acting in bad faith and would better protect the court's process without extinguishing the Plaintiffs' substantive claim at this stage.
The Court also explained that whether some material falls within the iniquity exception remained undecided and that the trial judge should determine the extent to which the Plaintiffs' abusive conduct, if proven, should affect equitable or discretionary remedies.
Holding and Implications
HOLDING: The Court concluded that the Plaintiffs' conduct in sanctioning and benefiting from Company A's covert deception of the Defendants' Solicitor constituted an abuse of the process of the court. The Court dismissed the Plaintiffs' appeal against that finding. It allowed the Defendants' cross‑appeal to the extent of ordering that the freezing orders obtained by the Plaintiffs be discharged, but it declined to strike out the Plaintiffs' claim, which will proceed to trial.
Implications:
- The immediate practical consequence is discharge of all freezing orders obtained by the Plaintiffs in these proceedings.
- The summary judgment application dismissed below remains struck out; the substantive claim proceeds to trial where the trial judge will decide (after disclosure and cross‑examination) whether and to what extent the Plaintiffs' abusive conduct should disentitle them from equitable or discretionary relief (including proprietary remedies, equitable compensation, interest and costs).
- The decision emphasises that suborning an opponent's lawyer by deceit is a serious abuse that the court will respond to, but that striking out a claim is a last resort requiring proportionality: other remedies (including discharge of interim relief) may be appropriate.
Judge Males delivered the leading judgment; Judges Phillips and Foxton agreed.
Alert