Courts order injunctions to prevent the use of privileged material

Tom Dane

In two recent decisions, the English Courts have demonstrated their willingness to grant injunctions to prevent a party from relying on legally privileged material belonging to the other party to litigation.

Legal professional privilege entitles a client to refuse to disclose confidential advice and communications with their lawyers to third parties (such as the court, other parties to litigation, and regulators). The right to withhold disclosure of material on privilege grounds is absolute and can only be overridden in very limited circumstances. A party can waive privilege itself. However, where a party has mistakenly disclosed privileged material or where a third party has disclosed privileged material to others without permission, the Courts may be prepared to intervene by granting an injunction to prevent the further use of such material.

Injunction following inadvertent disclosure of privileged material

In Microgeneration Technologies LTD v (1) Rae Contracting Ltd (2) Darren Ball (3) Paul Bennett [2017] EWHC 1856, the respondents to court proceedings mistakenly exhibited a note of legal advice to a witness statement rather than a note taken of an earlier court hearing. It was common ground that the advice was privileged. The respondents argued that the note of legal advice had been exhibited to the witness statement by mistake and they sought an injunction restraining the applicant from making use of the privileged material.

The court considered the relevant test for whether it was appropriate to restrain the use of the privileged material in circumstances of alleged mistaken disclosure being: whether it would have been obvious to a reasonable solicitor in the position of the individual who had received the witness statement that a mistake had been made. The court confirmed that the mistake would have been obvious and granted an injunction restraining use of the privileged material.

Injunction to prevent use of privileged information obtained in breach of confidence

In Lachaux v Independent Print Limited [2017] EWCA Civ 1327, the Court of Appeal upheld an injunction granted against a defendant publisher to stop it from using privileged information that had been provided to the publisher in breach of confidence.

The claimant brought libel proceedings against the defendant regarding articles based on information provided by his former wife. In the course of those proceedings, the defendant wrote to the claimant enclosing a document provided by the former wife which the defendant said was inconsistent with a witness statement that the claimant had filed in the proceedings. The document contained communications between the claimant and his French lawyer at the time regarding legal advice on the breakdown of his marriage. It was accepted that the document was privileged. The document had been provided to the defendant by the claimant’s former wife who had found it on a computer at the claimant’s home in Dubai.

At first instance, the judge granted an injunction to restrain the defendant from using the document. The defendant appealed.

The Court of Appeal refused the appeal. There was no proper basis for interfering with the judge’s exercise of his discretion to grant relief.

The documents were, on the face of it, the respondent’s confidential property and the subject of privilege. The right to refuse disclosure of privileged material was absolute and subject to only very limited exceptions (such as furtherance of a fraud). There had been no waiver of privilege and no fraud exception had been argued for.

The defendant wanted to rely on the privileged material to show that parts of the claimants witness evidence was false and thereby to attack the claimant’s credibility. However, the Court of Appeal rejected this on the basis that the privileged document was created long before the witness statement and so could not have been created in furtherance of fraudulent conduct and it was not enough to justify reliance on privileged material to say that it might affect the claimant’s credibility. The Court had examined the relevant documentation and it simply did not demonstrate that the respondent had been caught in a lie. Further, documents going solely to credit were not ordinarily discloseable in any event.

Comment

The above cases reaffirm the importance attached to the concept of legal professional privilege under English law; the narrow circumstances in which privileged material will be capable of being used by third parties; and the willingness of the English Courts to grant injunctions to restrain the use of privileged material by third parties.

Microgeneration Technologies LTD v (1) Rae Contracting Ltd (2) Darren Ball (3) Paul Bennett [2017] EWHC 1856

Lachaux v Independent Print Limited [2017] EWCA Civ 1327

Post By Tom Dane (3 Posts)

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