What happens when a Litigant goes “Privilege Hunting”?
The English Court of Appeal's recent decision in Salinas Pliego v Astor Asset Management 3 Ltd [2026] EWCA Civ 940 is a reminder that even strong claims can be undermined by litigation misconduct. The facts were extraordinary:
The claimants employed a company called Black Cube, a private investigation firm staffed by former Israeli intelligence officers, to target a sting operation on a newly-promoted partner X of the defendants’ solicitors who had conduct of the defendant’s case. Black Cube’s website says, “Winning isn’t everything – it’s the only thing.” By pretending to be a potential new client, a Black Cube operator obtained confidential information including litigation strategy and the impact of freezing orders from X. The meetings were secretly recorded, and the material was later used in the proceedings.
The partner X “was deceived and played for a fool by a skilful and well-prepared interrogator armed with insider knowledge.” Lord Justice Males noted that X personally now faces disciplinary proceedings before the Solicitors Regulatory Authority and professional ruin.
The claimants failed to disclose the intended Black Cube role when obtaining and defending freezing orders.
The Black Cube operation was done without the knowledge of the claimant’s then solicitors. When they were told about it, they refused to look at the video files or listen to the audio files. That resulted in them being sacked. New solicitors issued an application for summary judgment, exhibiting the covertly obtained recordings. The defendants applied to strike out the claim on the ground that the Black Cube sting operation was an abuse of process.
The claimants had a strong case on the merits. They claimed that they had been a victim of deception where shares worth about US $415 million provided as collateral for a loan had been sold, with the greater part of the proceeds being transferred into the control of one of the defendants. Freezing orders were key.
The case exposed a tension between serious litigation misconduct (privilege hunting and failing to disclose that when obtaining and defending freezing orders) on the one hand and an apparently strong substantive claim on the other
The Court’s Decision
The Court of Appeal described the privilege hunting conduct as a "very serious abuse" of the court's process and a "form of corruption". Importantly, the Court held that conduct can amount to an abuse of process even where a fair trial may still be possible.
The claim itself was not struck out. However, the Court found for the defendants and discharged the freezing orders that had been obtained by the claimants, on the basis that the Black Cube engagement/privilege hunting had not been disclosed to the Court when obtaining and defending the freezing orders. This demonstrates that serious litigation misconduct can have significant consequences beyond an award of costs.
Why does this matter in New Zealand?
While the facts are unusual, the case highlights several themes that are equally relevant to New Zealand litigation:
The courts are concerned with protecting the integrity of the judicial process, not merely avoiding prejudice between parties.
Legal professional privilege remains a fundamental protection that courts will guard jealously.
Parties may be held accountable for the conduct of investigators and other agents acting on their behalf.
Extraordinary remedies such as freezing orders remain discretionary and vulnerable where a party's conduct falls short of the standards expected by the court.
Parties seeking extraordinary remedies must expect their own conduct to come under scrutiny.
Salinas Pliego demonstrates that the courts will not hesitate to sanction serious litigation misconduct, even where the underlying claim appears strong. The decision reinforces the importance of legal professional privilege, the integrity of the judicial process, and the need for litigants to exercise careful oversight of investigators and other agents acting on their behalf. Ultimately, obtaining judgment is important. How a party conducts itself in pursuing that judgment matters too.
To view the judgment: Court of Appeal Judgment Template
