On 18 December 2015, Sir Michael Tugendhat, sitting as a Judge of the High Court, awarded injunctions restraining the Defendants, Independent Print Limited and Evening Standard Limited, from using information that was subject to legal professional privilege (“LPP”) after a private hearing (Lachaux v (1) Independent Print Limited (2) Evening Standard Ltd).
The Claimant, Mr Bruno Lachaux, had applied for an order for delivery up of documents which he claimed were subject to LPP but which had been obtained by the Defendants from the Claimant’s former wife, Ms Lachaux, in breach of an alleged duty of confidentiality owed to him by her, and by the Defendants. The Claimant also sought an injunction to restrain the Defendants from using the information in the documents, in particular, in two libel actions between the parties.
In his judgment, the Judge noted that it was necessary to refer to the documents “only in the most general terms” in order “not to defeat the purpose of these proceedings”. The main constituent of the documents was a copy or draft of a letter which the Claimant sent in January 2012 to a French avocat practising in Paris. The letter recorded some remarks of the French avocat, which the Claimant said the avocat had made to him in a telephone conversation. The letter also set out instructions on which the Claimant had sought from the French avocat advice in respect of the breakdown of his marriage and the future arrangements to be made for the young child of the marriage.
There was no dispute that the documents were supplied to the Defendant by the Claimant’s former wife and that they derived from a computer to which the Claimant’s former wife obtained access. It was also not disputed that LPP originally attached to the documents. The issues in question between the parties were: (a) whether the documents were confidential as between the Claimant and his wife; (b) whether the Claimant’s former wife and the Defendants acted in breach of confidentiality; (c) whether any confidentiality that did exist had survived disclosures by Ms Lachaux to third parties; and (d) whether, if the Claimant succeeded on all these issues, the court should exercise its discretion to grant an injunction in all the circumstances of the case.
The statement of the law in this area was summarised by the Court of Appeal in Imerman v Echenguiz  EWCA Civ 908, in which Lord Neuberger MR said “where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy…’”.
These principles (as summarised in ISTIL Group Inc. v Zahoor  EWHC 165 (Ch) are that:
- The starting point is that the essence of LPP is that it entitles the client to refuse to produce documents which are covered by the privilege, or to answer questions about privileged matters. But it has been said that once a privileged document is disclosed, the privilege itself is lost;
- The normal rules relating to the grant of equitable remedies apply (such as delay as a factor and the clean hands principle);
- In such cases, the court should “ordinarily intervene”;
- The court was not concerned with weighing the materiality of the document and the justice of admitting it;
- There is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. In this context, the emergence of the truth is not of itself a sufficient public interest; and
- The other public interest factors may still apply. There is no reason in principle why the court should not apply the rule that the court will not restrain publication of material in relation to misconduct of such a nature that it ought in the public interest to be disclosed to others.
The Defendants disputed that the documents or information were confidential but emphasised that if they were, the Claimant’s application ought to fail on discretionary grounds. The Claimant emphasised the points on which the Court has, in other cases, distinguished the exercise of the Court’s discretion in application to restrain misuse of information subjected to LPP from its exercise in application to restrain breaches of confidence. The Claimant, cited a number of cases on the nature and importance of protecting LPP, even in cases where, if it were not protected, the issue of truth might be resolved differently.
There were also relevant human rights grounds to consider, namely the rights of each party to a fair trial, the right to freedom of expression of the Defendants, the Claimant’s former wife’s rights to freedom of expression and to respect of her private and family life, and the Claimant’s right to his reputation, right to respect for his correspondence and his private and family life and right to freedom of expression.
All parties agreed that there may, in law, come a point where a confidential document, even one the subject of LPP, may have become so extensively accessible to the public at large that it loses any qualify of confidence that it may have had. The Judge did not find this to be the case on the evidence, agreeing with the Claimant that the Defendants’ evidence fell far short of showing that any quality of confidence in the documents had already been lost, or that the grant of the injunction the Claimant sought would serve no further purpose.
In exercising the Court’s discretion, the Judge considered it was appropriate to grant the orders. There is a public interest that is commonly held to override what would otherwise be a duty of confidentiality, but in a case where the document is subject to LPP, that is not of itself a sufficient public interest. LPP is just as important in defamation proceedings as it is in any other proceedings.
The Judge did not accept that the undoubted interference in the rights of the Claimant which would be entailed if the Defendants were to be free to use the documents was counterbalanced by any corresponding interference with the Claimant’s former wife’s rights by the grant of the injunctions sought. None of the other factors raised by the Defendants were sufficient for the court to refuse the relief sought on equitable grounds. As such, Sir Michael Tugendhat granted the injunctions and the other relief sought.
This case is a useful reminder of the strength of protection afforded by LPP, especially when compared to the principles of confidentiality. Whereas public interest is commonly held to override what would otherwise be a duty of confidentiality, that will not be the case when LPP applies. The fact that the ability to deploy the documents might assist in the emergence of truth in libel (or other) proceedings will not be sufficient on its own to permit a party to breach LPP.