UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure A party to English legal proceedings can with - hold “privileged” documents. In broad terms (and specific advice should be sought in respect of both of these), the two main forms of privilege arise in relation to: • communications between a lawyer and their client for the purpose of giving or receiving legal advice ( “legal advice privilege” ) and • communications between a lawyer, their client and/or a third party for the dominant purpose of conducting legal proceedings, including criminal proceedings ( “litigation privilege” ). Importantly, privilege will not exist where com - munications are made for the purpose of allow - ing or assisting a party to commit a crime or fraud. This has been described as the “crime- fraud” or “iniquity” exception. For this exception to apply, the court must determine that, on the balance of probabilities, there is a strong prima facie case of fraud (rather than actual proof of fraud). The exception applies to both legal advice privilege and litigation privilege. It exists whether or not the lawyer involved in the communications knows of the wrongful purpose.
However, it is now well established in English law that punitive damages are available where a wrong has been committed wilfully and/or dis - honestly and where the conduct was motivated by the pursuit of profit (such as in instances of fraud). This allows a victim of such wrongdoing to claim more than they have lost. It is important to note that the approach to puni - tive damages continues to be “proportionate and principled” . Accordingly, they will only be awarded in cases where the wrongdoing is par - ticularly egregious, and even then, they are likely to be reasonably modest in value. 7.2 Laws to Protect “Banking Secrecy” There is no specific banking secrecy regime in the United Kingdom. While English law provides that banks owe a general duty of confidentiality to their customers, there are a growing number of exceptions to this duty based on efforts to prevent money laundering, the funding of terror - ism, tax evasion and so on. In any event, in instances of fraud, English law provides avenues by which a wronged party may seek to obtain information from third-party banks (see the discussion of third-party disclo - sure and Norwich Pharmacal orders set out in 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties ). Where sufficient evidence of fraudulent activity exists, these ave - nues are unlikely to be impeded by general con - siderations such as a bank’s duty of confidence to its customers. 7.3 Crypto-Assets The property status of cryptocurrency assets is a developing area of law. To date, the courts of England and Wales have found that crypto- assets can be treated as property, and in Sep - tember 2024, the UK government introduced the
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages
Remedies in English law are typically focused on either compensating the wronged party or disgorging any gains that have been obtained by another party in unjust circumstances. As a consequence, the courts are slow to award damages that are purely punitive/exemplary.
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