Does publication of privileged material inevitably result in a loss of confidentiality, sufficient to destroy privilege?

​This article examines two recent cases which have looked at the position where privileged materials have been obtained improperly and are potentially available on social media.

A claim to privilege usually requires that the communication concerned has been made confidentially and that that confidentiality is maintained. Two recent cases have looked at the position where privileged materials have been obtained improperly and are potentially available on social media - does that result in a loss of the all essential confidentiality that in return destroys the claim to privilege?

This is not a situation that has featured in the case law hitherto, the nearest example being Supperstone J’s decision in 2011 in London Borough of Redbridge v Lee Johnson where an application for an Ashburton Injunction was challenged on the grounds the claimant’s privileged materials which had been inadvertently disclosed to the defendant had been circulated by him on Twitter. On the facts, that ground was not made out.

Such a situation almost arose in Lachaux v Independent Print Limited/Evening Standard Limited [2015] EWHC 3677 (QB). Here, the claimant’s privileged communications with his French lawyer had been improperly obtained by his ex-wife who had passed them to the defendant publications whom the claimant was suing for libel. The defendants wished to use these materials because they contended that it was impossible to reconcile their contents with a statement that the claimant had previously made in the course of the proceedings. The underlying facts concerned a contested custody dispute between the claimant and his former wife, in the course of which she had (according to her witness statement) made contact with a large number of public organisations to help her regain contact with their child of whom her ex-husband had custody. From the best of her recollection, her former husband’s privileged documents had been sent to the FCO, the UN Rapporteur and various media organisations. The former wife also asserted a right to continue to use and share these documents, albeit without specifying to whom she intended to make any further disclosure. Sir Michael Tugendhat was persuaded that the ex-wife’s statements were vague, identified no individual to whom, nor date on which, she had disclosed or intended to disclose the documents, and he therefore accepted that the 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.

It must be said that the outcome in this case, and the absence of any detailed discussion around the potential loss of confidentiality, was a mite surprising, not least having regard to the ex-wife’s threat in her statement to continue to mis-use the claimant’s privilege. What is even more surprising is that the privileged documents concerned can almost certainly be found by searching websites relating to the ex-wife’s custody battles. I for one have located on the internet what appear to be the documents in dispute.

However, this issue arose head on in a recent Singapore case, HT S.R.L. v Wee Shuo Woon [2016] SGHC 15. Here, the plaintiff’s computer systems had been hacked, resulting in privileged and confidential email communications with its lawyers being uploaded onto the Wikileaks web-site. It was accepted that (i) these emails contained legal advice pertaining to the dispute with the defendant, (ii) they included express provisos that they contained privileged and confidential information and (iii) the defendant had had nothing to do with the hacking. The defendant therefore sought to use them in support of an application to strike out the bulk of the plaintiff’s claim on the ground of abuse of process, the defendant alleging that the present suit had been initiated for the collateral purpose of obtaining documents to further the plaintiff’s interest in other proceedings. The plaintiff responded swiftly to this by seeking an order for all references to the emails in an affidavit served by the defendant to be expunged and for an injunction to restrain further use of them.

The main part of Hoo Sheau Peng JC’s Judgment is a good reminder and summary of the interplay of the principles between the Calcraft v Guest and Ashburton v Pape lines of authority, as eventually reconciled in Goddard v National Building Society [1986] 3 WLR 734. In essence, the Judge recognised that the Court might, in the exercise of its equitable jurisdiction to restrain a breach of confidence, restrict the disclosure and use of privileged documents which have been inadvertently or improperly disclosed to third parties in order to protect their confidential character. He recognised that the Court could restrain the use of privileged documents by way of an order to expunge offending portions of pleadings or affidavits. He further noted that such an application must be filed before the privileged documents have been formally admitted into evidence.

Here, the big question for the Court was whether the documents in this case had already lost their confidential character because they had entered into the public domain on account of their general availability on Wikileaks. The Judge accepted that the correct approach was to look at whether the documents had entered into evidence (that is, entered the Court’s’ record) and that since this had not happened in this case, the Court had jurisdiction to grant the relief that the plaintiff sought.

The interesting part of the Judgment concerns the defendant’s unsuccessful attempts to argue that references to “the public domain” meant that the documents had become public property and public knowledge, since the emails had been uploaded onto the internet and were freely available for access: why, the defendant submitted, would they be protected by the law, since the law of confidence should not act to protect information which is so widely known that there was no confidentiality to protect? Treating this as a mechanistic approach, as if the fact that documents are publicly accessible alone would be sufficient to defeat a claim for protection, the Judge preferred the narrower approach to public domain.

As to this, the Judge observed that one reason why the law of confidence does not protect documents in the public domain in the wider sense is because generally there is no purpose to granting an injunction when the material is already publicly known and accessible. He referred to the Spycatcher case (Attorney General v Observer Limited [1990] 1 AC 109) to illustrate this. Based upon speeches in that case, he suggested that the question is not so much the accessibility of the information per se but whether the degree of public accessibility is such that it would be senseless, as a practical matter, to try to protect the information as confidential. This requires the Court to examine whether there was any value to the party claiming confidentiality against the other party, and that was essentially a question of fact. In this case, the Judge held that the plaintiff continued to have a compelling interest in restraining the use of its emails, especially:

“ … his desire to avoid having the contents of his discussion with his lawyer over the conduct of the present suit, which were full, free, frank, and told in an atmosphere of confidence, used against him. One cannot over-emphasise the fact that the emails concerned the present suit, and that the original documents remain privileged against disclosure (for which privilege has not been waived). … If there were to be any person whom the plaintiff would have an interest in keeping the information from, it would have been the defendant, his opposing party. Obviously, that was no longer possible. However, the plaintiff still has an interest in seeking an order that the documents not be used by the defendant in the present suit. The prayer to expunge would serve this very purpose.” (Para 51).

In reaching this conclusion, the Judge was evidently struck by the practical realities, namely that the plaintiff was the victim of a cybercrime, the defendant was aware of that and whilst there was no suggestion that the defendant was responsible for the hacking, he was well aware of the circumstances leading to the unauthorised disclosure of the plaintiff’s information onto the internet. Given the express provisos contained within the information that the defendant wished to use, he had clearly been put on notice of the privileged and confidential nature of the emails, which notwithstanding he had sought to use. Considering all of this and the manner in which the defendant came to be in possession of the emails as well as the nature of the information within them:-

“ … it seemed to me that an obligation of confidentiality could still be justly and reasonably imposed on the defendant in respect of the Emails. Given that the defendant is the opposing party, the plaintiff would have every interest in restraining the use of the information in the present suit. To sum up, I was of the view that the emails in question could still be protected by the law of confidence.” (Para 54).

Evidently, the fact the plaintiff had moved quickly enough to prevent these documents being used in evidence was enough to get it home, notwithstanding that the documents continue to be freely available on the internet.

As an interesting postscript to this decision, the Judge also addressed whether the Court had any other discretion in the matter in order to refuse relief. This point arose because the defendant contended that if information were to be freely available online such that anyone might have sight of it, the Court should not lightly ignore a source of relevant material. Taken at its highest, the Judge understood this to be an argument that the Court should not exercise its discretion, if any, in favour of the grant of relief because it would mean the exclusion of relevant material, possibly to the prejudice of the defendant.

In order to answer this question the Court considered whether it could balance the public interest in having the maximum relevant material available to it and the public interest in the maintenance of confidentiality. Referring to Laurence Collins J’s decision in Istil Group Inc. v Zahoor (2003) EWHC 165 (Chancery), the Judge held that it was not open to him to refuse relief on the grounds that it would increase the amount of relevant material available to the Court.

If there is one criticism to be made of this decision it is that the Judge might have examined a little more closely the basis of the defendant’s contention that the plaintiff’s proceedings were being used allegedly for a collateral purpose. It is of interest to note that in the Istil case, Laurence Collins J held that an injunction should be refused on the ground of the public interest in the disclosure of wrongdoing and the proper administration of justice. There, the email communications in dispute revealed certain wrongdoing on the part of the claimant who additionally had apparently misled the Court in a material respect connected with the documents for which the injunction was claimed. Although the position was much more blatant in this English case, one might have expected in the Singapore decision that the Judge would have given some thought as to whether that provided support for concluding that the injunction here should be refused given the allegedly improper purposes for which the present claim was pursued. Perhaps the reason for this was that the Judge felt unable to consider the documents in dispute since the whole purpose of his original decision was that privilege over them was to be maintained.

It is notable that in the Lachaux decision a similar argument was also rejected. There, the Judge also considered the Istil decision but reflected that for a Court to conclude on the papers alone that the maker of a witness statement had lied to the Court required it to be satisfied to a high standard that that was the fact. In Lachaux, he was not satisfied that the claimant either had lied or was threatening to advance in the proceedings a factual case that he knew to be false. He accepted that if the defendants were to be permitted to adduce the contested documents at trial, there might well be questions that the defendants could probably put in cross-examination of the claimant based on the documents. But that was a long way short of the Judge concluding that there was no answer that the claimant could give to such questions other than to have to admit that he had lied.

Returning to the main issues, there is a common thread that even in the age of the internet, if a client’s privileged materials are improperly made available to third parties, even the whole world, the courts will take the pragmatic step still of refusing to allow such materials to be admitted in evidence, even where the defendant has had no part to play in bringing that result about - provided the claimant acts quickly enough to prevent their use before the court. Surely a pragmatic and just result, even if the fact that everyone bar the parties in court can undertake a simple search and find the documents concerned.

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.