In the recent case of Pliego and another v Astor Asset Management 3 Ltd and others [2026] EWCA Civ 940, the Court of Appeal was asked to decide whether “privilege hunting” amounts to an abuse of process of the English court and, if so, what the response of the court should be.
“Privilege-hunting” is helpfully explained in the judgment as obtaining or seeking to obtain an opponent’s confidential and privileged information by dishonest means.
Perhaps unsurprisingly, the Court of Appeal held that “privilege hunting” did constitute an abuse of process of the court, declaring “some things are so obvious that they do not need much analysis”.
BACKGROUND
In a high-value fraud claim, the claimants employed a company called Black Cube, a private investigation firm staffed by former Israeli intelligence officers, to target the solicitor who had the conduct of the defendants' case, in what is described as a covert sting operation.
By pretending to be a potential new client, a Black Cube operative fraudulently induced the defendants’ solicitor to attend meetings in Amsterdam, at which the solicitor was induced to reveal sensitive information about the present case, including:
- the impact of freezing orders which the claimants had obtained
- perceived weaknesses in the defendants' case
- the defendants’ litigation strategy
- the defendants’ settlement strategy
The meetings were secretly recorded and the recordings were then provided to the claimants personally. Interestingly, the instruction of Black Cube was done without the knowledge of the claimants’ solicitors who, when they were told about it, refused to look through the files or the report.
The claimants then instructed new solicitors who were willing to review the files, and who issued an application for summary judgment, exhibiting the covertly obtained recordings. The defendants’ response to the application was to make a cross-application to strike out the claim on the ground that the Black Cube operation was an abuse of process.
The deputy judge at first instance began his judgment by posing the question:
“What should the court do when someone with an apparently strong and substantial, perhaps unanswerable, claim in fraud seeks summary judgment in light of illicit knowledge obtained by unethical means?”
The court held that the sting operation was an abuse of process and decided to strike out the claimants’ summary judgment application. The judge characterised the claimants’ behaviour as “an affront to justice and inimical to the fundamental norms and values of civil litigation in this jurisdiction”.
Nevertheless, the judge did not strike out the claim in its entirety, considering this would be a disproportionate response, and instead deferred for determination at a future hearing the questions of whether or to what extent the claimants would be entitled to make use of the material they had obtained in evidence, and whether a fair trial remains possible.
THE APPEAL
The claimants appealed the finding of abuse and contended that they should be allowed to pursue their summary judgment application. The defendants cross-appealed, arguing that the judge should have struck out the claimants’ claim entirely.
As such, the issues before the Court of Appeal were as follows:
- Was the claimants’ conduct an abuse of the process of the court?
- If so, was the deputy judge wrong to conclude that striking out the summary judgment application was the appropriate and proportionate response to the abuse?
- If so, what was the appropriate and proportionate response?
The Court of Appeal emphasised that the appeal was considered on the basis that the claimants had a strong case on the merits such that, if the summary judgment application had not been struck out, it might well have succeeded. This was therefore the basis on which the question of proportionality in terms of the court’s response was to be considered.
1. Was the claimants’ conduct an abuse of the process of the court?
The claimants argued that the conduct was not abusive because the defendants’ solicitor should not have revealed the information and the information was potentially within the iniquity exception.
The court held that obtaining the information from the defendants’ solicitor was clearly the very object of the exercise and that the claimants could not have known of the iniquity exception point when approving the operation. The Court of Appeal found that the defendants’ solicitor “was deceived and played for a fool by a skilful and well-prepared interrogator armed with insider knowledge”.
Black Cube charged a retainer fee of £1,144,000 for their service, plus a success fee payable in the event that the intelligence sourced by Black Cube was “used”. The court held that the payment terms provided a “powerful incentive” to Black Cube to adopt unethical methods, which the claimants must have understood.
The Court of Appeal held that Black Cube's activities had "undoubtedly" had a very serious impact on the proceedings.
As such, the court emphasised that there was no doubt that the claimants’ conduct was an abuse of the process of the court.
2. Was the deputy judge wrong to strike out the summary judgment application?
In considering this question, the court identified three principles which are relevant to what the court is seeking to achieve, as follows:
- The objective is not to punish the abusive party, but to protect the court’s own process, which exists for the wider administration of justice and is not solely concerned with the outcome of a particular case.
- There must be an element of deterrence, so others are not tempted to abuse the process in a similar way.
- The court’s response must be proportionate to the conduct in question.
With reference to these considerations, the Court of Appeal held that the deputy judge was fully justified in concluding that the summary judgment application should not proceed, as to have granted summary judgment would have rewarded abusive conduct.
3. What was the appropriate and proportionate response?
The defendants argued that the default response to privilege hunting should be to strike out the abusive party’s claim, in the absence of very good reason not to.
The Court of Appeal disagreed and held that there is no principled reason why 'privilege hunting' should attract such a draconian response as a default rule when other equally culpable forms of abuse do not, such as the deliberate suppression of disclosable documents, the dishonest exaggeration of a claim or the presentation of perjured evidence.
Further, the court noted that the claimants appear to have a strong case on the merits and there is a public policy that fraud should be exposed. Striking out a claim in its entirety is a last resort, and deprives the claimants of a legal remedy which they would otherwise be entitled to.
The court therefore held that the appropriate and proportionate response was to refuse the application for summary judgment, but not to strike out the entire claim, and to leave it to the trial judge to decide whether the claimants’ abuse should affect any entitlement they may otherwise have to the relief sought.
However, the Court of Appeal held that the deputy judge had erred by failing to consider the freezing injunctions. These should have been discharged because they had been obtained using wrongfully acquired information and were bringing pressure to bear on the defendants.
The Court of Appeal therefore discharged the freezing orders.
SUMMARY
Clearly, a privilege hunting operation will be regarded as an affront to the principles of English justice and will be treated as an abuse of process. The Court of Appeal made no comment as to whether the conduct of Black Cube amounted to the commission of a criminal offence, but declared their conduct to be a serious abuse of the process of the court.
Solicitors who are presented by clients with the fruits of any such “privilege hunt” will need to consider carefully not only their professional responsibilities, but also the possibility of encouraging the commission of a criminal offence.
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