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Oops! Privilege, confidentiality and the photocopier

John Wilson of 1 Hare Court discusses the situation that arises when one party accidentally discloses documents to which legal professional privilege attaches.

picture of john wilson barister of 1 hare court

John Wilson, Barrister, 1 Hare Court

We have all, when reading through trial bundles, come across documents that just shouldn't be there. There is an apocryphal story of one solicitor who would bury pages of pornography deep within the files as a means of checking whether or not counsel actually bothered to read them. Sometimes, however, the buried treasure consists of documentation that ought to have been clothed in privilege. At this point difficult, and sometimes pivotal, questions of privilege and confidentiality will arise. In Istil Group & Anor v Zahoor & Others [2003] 2 AER 252 at paragraph 72 Collins J said:

"The modern decisions all involve factual situations where privileged documents have come directly from the solicitors for one party into the hands of the solicitor for the other party. The combination of the increase in heavy litigation conducted by large teams of lawyers of varying experience and the indiscriminate use of photocopying has increased the risk of privileged documents being disclosed by mistake, and the consequences of these mistakes have been the subject of several decisions in the Court of Appeal."

This article is concerned with the situation that arises when one party accidentally discloses documents to which legal professional privilege attaches, either by including them in a list of documents, annexing them to a witness statement or reply to questionnaire, sending them off to the other side in the ordinary process of disclosure or simply including them within the trial bundles by mistake. It is not an article that delves deep into the complex law of privilege per se.

However, in summary, legal professional privilege covers two classes of documents which are entitled to protection. In the first place, there are those that are privileged whether or not litigation was contemplated or pending ("legal advice privilege"). Secondly, there are those documents that are only privileged if litigation was contemplated or pending when the documents were made or came into existence ("litigation privilege"). Where legal professional privilege is not waived or abrogated it is paramount and absolute and not subject to the balancing exercise of weighing competing public interests against one another. In R v Derby Magistrates Court Ex parte B [1996] AC 487 Lord Taylor CJ said:

"The principle which runs through all these cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyers in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. Nobody doubts that legal professional privilege could be modified, or even abrogated by statute, subject to the objection that legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms …but whatever inroads may have been made by Parliament in other areas, legal professional privilege is a field which Parliament has so far left untouched."

The question of whether or not statute had invaded and delimited legal professional privilege was at the heart of the decision of the Court of Appeal in Bowman v Fels [2005] 2 FLR 247. It was held that section 328 of the Proceeds of Crime Act 2002 could not be interpreted as meaning either that legal professional privilege was to be overridden or that a lawyer was to breach his duty to the court by disclosing to a third party external to the litigation documents revealed to him through the disclosure process.

It should also be pointed out that if a communication between solicitor and client which would otherwise fall within the ambit of legal professional privilege contained the commission of a criminal offence then that would carry that communication (whether oral and recorded in an attendance note or written) "outside the safe harbour of legal professional privilege" (see Curtis v Curtis [2001] EWCA Civ 469). In the latter case the fact that a father had made serious threats against the person of a conveyancer within the firm he had instructed came into the hands of the mother's advisers. The Court of Appeal held that the communication between solicitor and client contained a serious criminal offence and therefore privilege was not engaged. The mother's solicitors were entitled to rely upon the affidavit by the father's solicitors in support of an application to come off the record.

Waiver or loss of privilege
The privilege is, in all cases, the privilege of the client and not of the solicitor and may be waived by the former but not by the latter. It is not waived if it is merely referred to in, for example, a witness statement. Furthermore, waiver as to some of several documents does not involve waiver as to the others. However, if part of a document is put in evidence or read to the court, privilege will be waived for the whole document, unless the remaining part deals with an entirely different subject matter. Similarly, if part of a letter is disclosed, the disclosing party is deemed to be waiving privilege in relation to the whole of the letter unless it can be shown that the other parts of the letter are so distinct as to amount to different documents (see Pozzi v Eli Lilley & Co The Times December 3rd 1986). Disclosure of part of an expert's report waives privilege as to the whole.

What is the position when privileged documents are mistakenly disclosed? Generally, such documents could be used by the receiving party on the basis that they were no longer the subject of legal professional privilege where it was not obvious to the reasonable solicitor that a mistake had been made, subject always to the court's powers of case management (see Al Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780 [2002] All E R (D) 450, The Times, June 17th 2002). In most cases, however, it will be obvious that a mistake has been made and the receiving party should return it without taking copies as soon as it is realised that the document had been entitled to legal professional privilege.

Once a privileged document has been disclosed the privilege itself is lost (see Slade LJ in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044). As Hoffman J put it in Black & Decker Inc v Flymo Ltd [1991] 1 WLR 753, once a privileged document was disclosed the question was one of admissibility and not privilege. Practitioners are, however, aware that in normal circumstances, if a privileged document comes into their hands from the other side obviously by mistake, it should be returned with no copies being taken. Although the privilege has gone there is usually no right in the receiving party to use the formerly privileged document or to retain it. In what circumstances would it be appropriate to retain the document and rely upon it?

Loss of privilege and admissibility
The fact that privilege has been lost does not make the documents in question any less confidential as between solicitor and client. So, when considering whether the documents mistakenly disclosed can be relied upon it is necessary to consider the question of confidentiality. Collins J, in summarising the legal position in Zahoor's case, said at paragraph 74 of his judgment:

"First, it is clear that the jurisdiction to restrain the use of privileged documents is based on the equitable jurisdiction to restrain breach of confidence. The citation of the cases on the duty of confidentiality of employees makes it plain that what the Court of Appeal was doing in Lord Ashburton v. Pape [ (1913) 2 Ch 469] was applying the law of confidentiality in order to prevent disclosure of documents which would otherwise have been privileged, and were and remained confidential. Second, after a privileged document has been seen by the opposing party, the court may intervene by way of injunction in exercise of the equitable jurisdiction if the circumstances warrant such intervention on equitable grounds. Third, if the party in whose hands the document has come (or his solicitor) either (a) has procured inspection of the document by fraud [1] or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene by the grant of an injunction in exercise of the equitable jurisdiction. Fourth, in such cases the court 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, e.g. on the ground of delay."

In practice, the receiving party will either make an application to the court to rely upon the document or the disclosing party will seek injunctive relief to prevent reliance on the document and to procure the delivery up of the formerly privileged document and all copies of it.

In what circumstances, then, will the court allow a formerly privileged document to be used? There have been significant judicial differences of opinion about how it should exercise its discretion. Should the court, in deciding whether or not confidential information can be used, be required to exercise its discretion by balancing the legitimate interests of a claimant in seeking to keep the confidential information suppressed and the legitimate interests of the defendant in seeking to make use of it? Or should the court consider that the fact of confidentiality will inevitably trump any application to rely upon the formerly privileged material (see Goddard v Nationwide Building Society [1987] 1 QB 670; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; Webster v James Chapman & Co [1989] 3 AER 939; Derby v Weldon (No 8) [1991] 1 WLR 73; Pizzey v Ford Motor Co Ltd, The Times March 8th 1993.)?

In R v Derby Magistrates Court, ex parte B [1996] AC 487 the House of Lords rejected the use of a balancing exercise between the public interest in securing the availability of all relevant evidence and the public interest in upholding legal professional privilege. The point was put succinctly by Vinelott J in Derby v Weldon (No 8) [1991] 1 WLR 73 when he stated that the balance between conflicting policy considerations (completeness of evidence before the court and the protection of legal professional privilege) had already been struck by the making of the rule of legal professional privilege.

The facts in Zahoor's case are labyrinthine and it is not necessary for the purposes of this article to set them out. However, in it, Collins J provided a very helpful summary of the jurisprudence in this area as well as setting out where things currently stand. In summary, the position is as follows:

(1) Once a privileged document has been disclosed privilege is lost and the question becomes one of admissibility and not privilege

(2) The decisions from Lord Ashburton v Pape to the present involve the equitable jurisdiction to grant injunctions to protect breach of confidence. Accordingly the normal rules relating to the grant of equitable remedies apply. If there has been significant delay in making the application for an injunction then that will be taken into account in the exercise of the equitable jurisdiction (see Goddard v Nationwide Building Society and Guinness Peat Properties Ltd v Fitzroy Robinson Partnership). It must follow that other equitable principles on the grant of injunctions also apply such as a consideration of the conduct of the party seeking the injunction, including the "clean hands" principle.

(3) In such cases the court should "ordinarily" intervene to restrain use of the confidential information (see Guinness Peat at 1046).

(4) In the context of protecting formerly privileged documents under the Lord Ashburton v Pape principles of confidentiality the court was not concerned with weighing the materiality of the document and the justice of admitting it. That balance had already been struck in favour of non disclosure by making the rule of legal professional privilege.

(5) There is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. However, in this context, the emergence of the truth is not of itself a sufficient public interest. The reason why the balancing exercise is not appropriate is because the balance between privilege and truth has already been struck in favour of the former by the establishment of the rules concerning legal professional privilege.

(6) Other public interest factors may still, however, 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 (Initial Services Ltd v Putterill (1968) 1 QB 396 at 405 in which Lord Denning MR cited Wood V-C in Gartside v Outram (1856) 26 LJ Ch 113, 114: "There is no confidence as to the disclosure of iniquity.") The defence of public interest is not limited to iniquity. Iniquity is merely an instance of just cause or excuse for breaking confidence (see Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 268 – 269 and Ashdown v Telegraph Newspapers [2002] Ch 149.)

The practitioner should be aware of the distinction between legal professional privilege and principles of confidentiality once a privileged document has been mistakenly disclosed. However, in the large majority of cases the receiving party should deliver up the document on request. A particular problem that arises in voluminous cases will be that the disclosing party (and sometimes the receiving party) will not be aware of the mistaken disclosure of privileged nuggets of evidence until a late stage in the proceedings. Once the mistake has been discovered then the disclosing party should make an immediate request for the return of the documents in question and, if necessary, seek injunctive relief to that effect. The receiving party should ordinarily accede to the request. However, if there are issues of delay, or other equitable principles are engaged, then they must be articulated clearly and succinctly at the earliest opportunity. In particular, the disclosing party must have "clean hands". The mere fact that a document is material or that it will render it more likely that the truth will out at trial is insufficient reason to hold onto it and rely upon it. However, if the relevant document discloses "iniquity" that may present a reason for refusing to surrender the document.

On a practical level, so far as the disclosing party is concerned, there is another good reason for seeking early recovery of the document. As matters get closer to trial minds become more focussed on the minutiae of the case and upon its presentation and the offending document may yield up unexpected treasures in terms of "iniquity" or the absence of clean hands.

Those risks multiply once the trial has begun. To take a simple example from a recent TLATA case: a claimant presented her case on the basis that a transaction was tainted by undue influence because she did not have independent legal advice. However, her present solicitors had innocently disclosed one page of a two page letter she had written to them in which she stated that she had seen two sets of solicitors prior to seeing her present ones. No request was made for its return and, at the request of the defendant's solicitors, her solicitors included it in the trial bundle. If her present solicitors had sought the recovery of that document prior to her making the claim of undue influence, they would probably have succeeded in getting it back. Even thereafter they would probably have succeeded: one is not entitled to balance the materiality of the document against the right to preserve confidences and the public interest in the emergence of the truth is not a sufficient ground for not delivering the document up. However, the claimant then went into the witness box and said on oath that she had not seen any other solicitors prior to her present ones. She committed perjury. At that point, the chances of the receiving party succeeding in relying on the document increased enormously. The claimant did not have clean hands. Her behaviour was iniquitous. She made an immediate application to another judge (it is hard to envisage circumstances where the trial judge should hear such an application) for an injunction restraining counsel from putting the document to her and seeking its delivery up. A cross-application was made for disclosure of the second page of the letter. An injunction was refused and the claimant was ordered to disclose the second page of the letter, with ruinous consequences for her credibility.

Privileged documents will continue to slip through the net and into the hands of the other side. If anything, mistakes are likely to proliferate as cases become increasingly paper-heavy. The important thing for the disclosing party is to act quickly once the mistake has been recognised. The receiving party should expect that in the majority of cases the document will continue to be confidential, even though privilege has been lost, and should return it before being asked to do so as soon as it is realised that the document was entitled to privilege and the disclosure was mistaken. It will only be in rare cases that a receiving party will be able legitimately to rely upon the mistakes of the opposing side.

The law of evidence in this field is the same in family proceedings as it is in the civil arena.

[1] See ITC Film Distributors v Video Exchange Ltd & Others [1982] 2 AER 241