Whether disclosure of client’s identity by solicitors protected by legal advice privilege
The claimant sought an order requiring the respondents, a firm of solicitors, to disclose the name of a former client. There was no dispute that the court has an inherent jurisdiction to order a solicitor to disclose a client’s details, but the issue in this case was whether such an order should be made. In the case of JSC BTA v Solodchenko (see Weekly Update 30/11), solicitors were ordered to disclose the contact details of a client. However, in this case, it was the identity of the client that was being sought and Eady J agreed that that information can be the subject of legal professional privilege. It did not matter that the name might have been supplied before any retainer came into existence. That was not an absolute bar to privilege. Instead, the issue is “precisely what was discussed or conveyed”. On the facts of this case, the client’s name was not “simply a piece of neutral background information”, as would generally be the case. Here, the client had given clear and express instructions from the outset that his identity should be kept confidential, and the solicitors were only retained on that basis. Balancing that against the potential harm to the claimant if disclosure was not made, the judge concluded that it was not appropriate to order disclosure and go behind the legal professional privilege which he had upheld.