The Court of Appeal has handed down a landmark judgment on various aspects of the law relating to abuse of process and legal professional privilege in Salinas v Astor Asset Management 3 Ltd [2026] EWCA Civ 940.
In the underlying proceedings, Cs advance a fraud claim for c.US$300 million and obtained freezing orders in 2024. The appeal arose out of an attempt by Cs deliberately to obtain Ds’ privileged information. Cs did so by instructing a firm called Black Cube to target Ds’ former solicitor in a covert sting operation. By pretending to be a potential new client, a Black Cube operative induced the solicitor to reveal sensitive information about this litigation, including the impact of the freezing orders and Ds’ litigation and settlement strategy: see [2]. Those meetings were secretly recorded and the recordings were provided to Cs, who then applied for summary judgment. This was described as a ‘deliberate and sophisticated scheme, carried out with the knowledge and approval of the claimants, with a view to obtaining confidential and privileged information which would assist the claimants in the litigation’: [42].
Ds applied to strike out the claim (alternatively to discharge the freezing orders) on the ground of abuse of process and that the fairness of any trial had been jeopardised.
At first instance, the Commercial Court held that Cs’ conduct was an abuse of process but that the appropriate sanction was to strike out the summary judgment application (rather than the claim) and to order Cs to pay indemnity costs. Both Cs and Ds were given permission to appeal.
Following a 3-day appeal, the Court of Appeal dismissed Cs’ appeal and allowed Ds’ cross-appeal to the extent of discharging all the freezing orders.
As to Cs’ appeal, Males LJ pointed out that while the categories of abuse are not closed, the conduct of a litigant can be abusive only if there is some nexus between that conduct and the litigation which is said to have been abused: [64]. But it is not a necessary requirement before a finding of abuse can be made that a fair trial has become impossible: some conduct may be abusive even if a fair trial remains possible.
In this case, Cs’ conduct was a very serious abuse (‘some things are so obvious that they do not need much analysis’: [74]); a ‘form of corruption’ ([79]); and may have been a criminal offence: [78].
As to the response to the abuse, there are three principles: (1) the objective is not to punish the party but to protect the court’s own process, which exists for the wider administration of justice; (2) protection of the court’s own process includes an element of deterrence; and (3) the court’s response should be proportionate to the conduct in question, but in some cases the abuse may be such that a party has forfeited its right to have its claim or defence determined: [82].
Applying those principles, the Judge was right to refuse summary judgment but wrong to regard this as a sufficient response to Cs’ abuse. Discharging all the freezing orders obtained by Cs is an appropriate and proportionate response because there was a real nexus between the abusive conduct and the freezing orders. Accordingly, Males LJ concluded that all the freezing orders should be discharged with the defendants to apply to the Commercial Court for the enforcement of Cs’ cross-undertakings in damages: [108].
Niranjan Venkatesan KC and Alexander Georgiou acted for the successful defendants, instructed by PCB Byrne LLP.
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