Whether privilege had been waived when a document was sent to a third party and then stored on a party’s server


The claimant sent privileged documents to a third party. The documents were sent to the third party’s personal email address but when they were opened on her work computer they became stored on her employer’s server. The issue in this case was whether privilege had therefore been waived not just in relation to the third party (which was accepted) but also in relation to her employer.

It is a pre-condition to a claim for privilege that the documents in question are confidential. The issue in this case was whether the documents in question had become generally available, such that confidentiality had been lost. Simler DBE J held that, since the documents were sent to the third party’s personal, and not her work, email address, confidentiality had not been lost. The fact that they had ended up on the employer’s server was equivalent to the third party having left the documents on her office desk and a colleague having seen them there. It could not be said that the claimant would have thereby consented and waived privilege. It made no difference that the employer was entitled to inspect the server. In any event, it would have been obvious to anyone that the documents in question were of a sensitive nature and that the third party had been aware that they were confidential and had not used them in a manner inconsistent with their sensitivity and confidentiality.