Bourlakova v Anufriev: High Court rejects iniquity exception challenge to privilege over investigator communications

Instructing enquiry agents to obtain an opponent's confidential information, without consent and in anticipation of trial, is not iniquitous of itself. That is the effect of a ruling in the long-running dispute over the estate of the late Oleg Bourlakov, in which the High Court declined to disapply legal professional privilege over communications with private investigators.

In Bourlakova and others v Anufriev and others [2026] EWHC 1747 (Ch), handed down on 10 July 2026, Mr Justice Richards dismissed an application by Semen Anufriev and Nikolai and Vera Kazakov for declarations, disclosure and information on affidavit concerning the claimants' dealings with CT Group and Marengo.

Four alleged iniquities

The applicants contended that over five years the Bourlakovas, assisted by Mishcon de Reya, obtained access to their confidential and privileged material on an industrial scale. Four iniquities were advanced: the instruction of CT Group, the provision to CT Group of covert recordings made in the family's Monaco home, the instruction of review counsel to screen privileged material, and the instruction of Marengo to eavesdrop on a conversation between the Kazakovs and their lawyer in a Marylebone bar.

None was established.

Richards J confirmed, following Al Sadeq v Dechert LLP [2024] KB 1038, that iniquity does not require fraud or dishonesty. It extends to underhand conduct breaching a duty of good faith or contrary to public policy or the interests of justice. But something more than general disapproval is needed: the conduct must take the lawyer and client relationship outside the ordinary run of professional engagement, or amount to an abuse of a relationship falling within it.

Belief in lawfulness matters

The applicants argued that Barclays Bank v Eustice [1995] 1 WLR 1238 rendered the clients' beliefs about legality irrelevant. Richards J disagreed. Schiemann LJ had not been laying down any such rule. A litigant's belief as to lawfulness bears both on whether there is iniquity at all, the concept inviting consideration of mental state, and on whether the solicitor relationship remained within the ordinary run.

That distinction proved decisive. The judge found that the claimants and their solicitors believed CT Group's investigations were lawful, that sensitive documents came from a whistleblower rather than from hacking, and that neither the clients nor the firm sought privileged material for themselves. Mishcon de Reya had instructed separate review counsel, latterly a silk with privilege expertise, precisely so that no privileged document reached them. It made no sense, the judge reasoned, to commission a work product one could not use.

The claim that the clients wanted CT Group itself to benefit from sight of privileged material also failed, not least because the resulting report was deployed in a freezing order application that well-resourced opponents would inevitably scrutinise.

Findings declined

Two questions were left open. The judge would not decide whether CT Group engaged in or commissioned hacking, holding that a finding of such gravity could not fairly be made on paper against a party absent from the hearing and without cross-examination. Nor would he find that the firm acted in good faith generally, a proposition too broad for the argument advanced, while making no finding of bad faith.

He proceeded on the basis that a high proportion of the documentation underpinning CT Group's report was forged, the freezing order application having been withdrawn with indemnity costs.

The eavesdropping was said to reflect no credit on anyone. Applying Gamlen Chemical, as approved in Eustice, conduct that is merely disreputable or a failure of ethical standards falls short of iniquity. The Marengo allegation was described as towards the margin, but on balance did not cross it.

Trial of the underlying claims, involving assets exceeding US$3bn, is listed for October 2027.