The interplay between confidentiality and privilege

The courts continue to examine different aspects of this area and Garnham J’s decision in Simkin v The Berkeley Group is the latest example.

In a recent blog posted on 09 June 2017, I looked at the interplay between confidentiality and privilege which was central to the Singapore Court of Appeal decision in Wee Shuo Woon v HT S.R.L. [2017] SGCA 23. The issue there was the extent to which equitable remedies based on the law of confidentiality could come into play to protect privileged material which had been unlawfully hacked and made available on the internet.

A different aspect of the interplay between confidentiality and privilege underpins the decision of Garnham J. in Simkin -v- The Berkeley Group Holdings Plc [2017] EWHC 1572 (QB). Here, the claimant was the defendant’s former Group Finance Director who had been asked to resign. In the ensuing proceedings between them, the defendant sought to refer in its evidence to the contents of a document which was called the claimant’s “synopsis”. The synopsis comprised a document that the claimant prepared for sending to his divorce solicitor, in the course of seeking advice on assets that might be relevant to a future settlement of his divorce, together with a covering email from his work email account to his private email account. That email had no content other than a footer which contained the defendant’s standard email disclaimer (This email including attachments is confidential, may be covered by legal professional privilege and is intended for the addressee only… etc).

The claimant argued that the email was a private communication sent by the claimant to himself at his private email address and that it was accompanied by an express notice that it was confidential and might be privileged. The claimant had good reason to think that the document would not be seen by anyone else, and it seems it would not have been, save for the fact a disclosure exercise was conducted as a consequence of the claimant launching the present proceedings.

The defendant argued that, although a court has power to restrain the use of a privileged document by reference to the court’s equitable jurisdiction to restrain breaches of confidence (as in Lord Ashburton -v- Pape [1913] 2 Ch 469), here they argued that the synopsis was not confidential vis a vis the defendant.

Garnham J agreed and gave the following reasons for his decision:

  • The claimant had signed a copy of the defendant’s IT policy which made clear that emails sent and received on its IT system were the property of Berkeley’s. As a result, its IT department had access to all the company’s computers and email accounts and did not need authorisation before accessing them.
  • The synopsis was created in the course of the claimant’s employment. It contained an analysis of the defendant’s financial performance by its Group Finance Director, created on, and transmitted via, its IT system while the claimant was at its office.
  • It was impossible to maintain that the claimant had any reasonable expectation of privacy as regards to the preparation of this document. The claimant saved the synopsis to his folder on one drive at Berkeley’s central servers. The claimant was, or should have been, aware that documents in that file were stored centrally; further the synopsis was not password protected nor segregated from the claimant’s work related documents.
  • As the claimant should also have been aware, the contents of his email account would also have appeared in his PA’s email account and she had direct access to his email folder where the email and synopsis were stored.
  • Neither the synopsis nor the email under cover of which it was sent to the claimant’s own email account indicated on their face that they were prepared for the purpose of seeking legal advice. The standard Berkeley footer did not assist the claimant since the purpose of that footer was to protect Berkeley’s confidentiality, not that of any of its employees as against their employer.
  • Finally, the claimant was well aware that he was not entitled to privacy in using the defendant’s IT system.

This might in one respect seem a surprising decision, but it demonstrates the perils of using an office email account, where there is an appropriate IT policy in place, where employees, no matter how senior, wish to prepare something that would otherwise be private, confidential and probably privileged. It may be that one key factor here was that the synopsis document contained an analysis of the defendant’s financial performance which enabled it to be said that the document was prepared in the course of his employment. One has to question whether the same conclusion would have been reached if the analysis had been of the claimant’s own financial position, without direct reference to the position of the defendant itself. Nonetheless, this is a stark warning of the dangers of preparing confidential documents using workplace IT systems and then expecting to be able to assert privilege over them as against one’s employer.

It is notable that this decision distinguished that of Simler J in Shephard -v- Fox Williams LLP [2014] EWHC 1224 QB. Here, the claimant’s girlfriend was in dispute with her former solicitor employers. The claimant sent her a copy of a privileged document relating to his divorce proceedings which he asked his girlfriend to review and comment upon. In doing so, she forwarded the document to her work email so that it became available to the defendant on its server. The girlfriend was aware that the document was privileged, highly confidential and contained sensitive personal data. She did not realise or appreciate that the documents would be stored on her employer’s server as a result of her actions and the Judge found it fanciful to suggest that the claimant knew that she would forward them to her office server. In those circumstances, there was no basis for the solicitor’s electronic information policy to bite onto these communications: the claimant had no notice or knowledge of the policy and had never been an employee of the solicitors. The fact that the girlfriend personally might not have been able to assert rights of privilege against the solicitors did not mean that the claimant did not assert them himself and his confidentiality was not lost simply because she had forwarded the documents to her work email.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.