Unethical investigations and abuse of the court’s process: lessons from Pliego v Astor

In Pliego & Anor v Astor Asset Management 3 Ltd & Ors [2025] EWHC 2968 (Comm), the court faced a difficult decision. Best put by Stephen Houseman KC sitting as a Deputy Judge: “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?”

Background

The circumstances leading to the applications and cross-applications in question in this judgment were described by the judge as “unusual” and “concerning”. The claimants hired a private investigator (Black Cube) who deceived the first, fourth and sixth defendants’ solicitor into meeting with him on the basis that he was pitching for a new client. Over a series of three meetings, the private investigator manipulated the solicitor into providing information about the underlying proceedings, including the perceived merits of his clients’ position. The meetings were then secretly filmed and recorded, and the recordings were subsequently provided to the claimants.

In the underlying claim, the claimants alleged that the defendants had deceived them into concluding a Stock Loan Agreement in 2021. The claimants also sought damages for claimed breach of contract claim due to the transfer and disposal of shares.

Relying on the information obtained by the private investigator, the claimants applied for summary judgment against the first, fourth and sixth defendants (the “Astor Defendants”).

The Astor Defendants contended that the illicit knowledge comprised legal professional privilege, which was sought by the claimants to gain unfair advantage. They argued that such conduct was an abuse of process and likely to obstruct the just disposal of the proceedings. On this basis, they cross-applied to strike out or stay the proceedings for abuse of process and/or risk of unfair trial, and sought directions prohibiting the future use of the evidence illicitly obtained by the claimants.

While the claimants accepted that the methods employed to obtain the evidence were unethical, they denied responsibility for engaging in such methods, including denying receiving or obtaining any insight into the privileged communications. In doing so, they invoked the iniquity principle (that legal professional privilege does not apply to documents or communications which come into existence in furtherance of a fraud, crime or other iniquity), and claimed that they gained no unfair advantage in the litigation.

Judgment

The court held that on the balance of probabilities, the claimants were responsible for and complicit in the private investigator’s conduct. The court also found that the claimants engaged in unethical behaviour with a view to obtaining an unfair litigation advantage.  Whether or not the claimants expressly approved the sting operation conducted by the private investigator was irrelevant to this finding. The judge considered that there was no evidence to suggest that they were shocked or surprised to receive the fruits of this covert operation. On the contrary, they sought to make use of this illicit knowledge in their summary judgment application.

Further, the court held that the claimants’ unethical behaviour involved or constituted an abuse of process (irrespective of the evidential status of the illicit information disclosed by the solicitor or whether privilege otherwise attached to that information was precluded by the iniquity principle).

The judge said: “The use of unethical methods to target an adversary’s solicitor in the hope of extracting sensitive information or insights from them is anathema to the norms and values of civil litigation. It is cheating the system with a view to undermining the level playing field which the Court strives to maintain between opposing parties. It offends justice”.

The judge:

• rejected the claimants’ argument that confidentiality was lost by the solicitor’s disclosure of privileged information. According to the judge, the solicitor was “deceived from start to finish. He was lulled into a false sense of confidence and candour through unethical deception and manipulation”.
• held that while the solicitor may be guilty of serious professional misconduct, it was only because of the deception and manipulation he was subjected to by the claimants.
• found that it would not be proportionate and appropriate to strike out the entirety of the claimants’ claim at this stage, adjourning the determination of the evidential status of the illicit information, and whether the possession of such illicit knowledge was likely to create a substantial risk to a fair trial to a further ‘Information Review Hearing’.
• struck out the summary judgment application as a matter of the court’s inherent jurisdiction and considered that to be appropriate and proportionate in circumstances where:

1. there was a decent prospect of the claimants succeeding in their deceit claim at trial;
2. this approach deprived the claimants of any specific findings in their favour;
3. the matter was still subject to the outcome of the Information Review Hearing; and
4. the claimants were likely to be liable to pay indemnity costs.

The judge made clear that the court’s response to the claimants’ abuse of process did not preclude a future judge from granting any remedy or imposing any sanction they consider appropriate (following the Information Review Hearing), having regard to the impact of the claimants’ illicit knowledge upon the fair disposal of the proceedings or the risk of an unfair trial.

At the consequentials hearing, the court ordered that the claimants pay indemnity costs. In making this decision, the court took various aggravating factors into consideration, including that the claimants did not acknowledge in their skeleton argument that the conduct concerned had been unethical or untoward, and offered no apology to the court for abusing its process.

Permission to appeal and cross-appeal was also granted to both parties.

Comment

The judgment in this case demonstrates that the court is willing to use its inherent jurisdiction to strike out summary judgment applications involving abuse of process, and provides litigants with further commentary on the distinction between a reasonable fraud investigation and an abuse of the court’s process. The extraordinary facts in this case present a warning to litigants who hope to rely on the iniquity principle as a shield against ‘privilege hunting’ and a reminder that a party to proceedings is responsible for the conduct of those they instruct.  The decision brings into sharp relief the fact that unethical means adopted will have consequences for those involved, including severe costs sanctions.

This article was authored with the assistance of Gemma Watson, Trainee at CMS.