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08 MAR 2005

PRACTICE AND PROCEDURE: Bowman v Fels [2005] EWCA Civ 226

(8 March 2005; Brooke V-P, Mance and Dyson LJJ; Court of Appeal) [2005] 2 FLR 843

Section 328 of the Proceeds of Crime Act 2002 was not intended to cover or affect the ordinary conduct of litigation by legal professionals, including any step taken by them in litigation from the issue of proceedings and the securing of injunctive relief or a freezing order, up to its final disposal by judgment. Such ordinary conduct of litigation did not involve the lawyers concerned in 'an arrangement which . . . facilitates the acquisition, retention, use or control of criminal property', even if they suspected that the outcome of the proceedings might have such an effect. If, contrary to this view, s 328 was to be interpreted as including legal proceedings, it could not be interpreted as meaning either that legal professional privilege was to be overridden or that a lawyer was to breach his duty to the court by disclosing to a third party, external to the litigation, documents revealed to him through the disclosure processes.

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