In a recent decision, the Court of Appeal has upheld an injunction against a defendant publisher to prevent it using the claimant’s privileged information that had been provided to the publisher in breach of confidence: Lachaux v Independent Print Limited  EWCA Civ 1327.
The decision does not create new law, but it re-emphasises the courts’ willingness to intervene to protect privilege in appropriate circumstances, including where privileged information has been obtained as a result of a breach of confidence.
In 2014, the defendant published various articles about the claimant based on information and allegations supplied by his former wife, Afsana. The claimant brought libel proceedings against the defendant in respect of those articles (see here for our blog post on the Court of Appeal’s decision on the libel issues).
In 2015, Afsana brought proceedings against the claimant seeking the return of confidential documents, particularly emails, that she said he had wrongfully and covertly taken from her. In his defence, the claimant said that these documents had been accessible to him on a computer they had both used in their marital home in Dubai, and that under the laws of the UAE he was entitled to access them including because UAE law did not recognise the possibility of secrets between husband and wife.
In October 2015, in the course of the libel proceedings, the defendant’s solicitors wrote to the claimant’s solicitors annexing a document which they said had been provided to them by Afsana and which was incompatible with a witness statement the claimant had submitted in the proceedings.
Various correspondence ensued, and the claimant sought an injunction to restrain the defendant using the relevant documentation, which comprised communications between the claimant and his French lawyer relating to legal advice he had sought in connection with the breakdown of his marriage. It was accepted for these purposes that the documentation derived from a computer in Dubai which Afsana had accessed and that it was originally protected by legal professional privilege.
The judge (Sir Michael Tugendhat) granted the injunction. The defendant appealed.
The Court of Appeal (McFarlane, Davis and Sharp LJJ) dismissed the appeal, saying the judge was justified in his conclusions and there was no proper basis to interfere with the exercise of his discretion.
The court said the relevant law could be taken from just two cases:
- The first was R v Derby Magistrates Court, ex. p B  1AC 487, where an individual initially admitted murder but then retracted his admission and blamed his step-father. At the committal hearing, counsel for the step-father asked about the individual’s instructions to his solicitors when initially admitting the murder. The House of Lords held that the instructions were privileged, that privilege was absolute, and there was no place for an exercise balancing the competing public interests. The instructions were therefore not admissible.
- The second was Istil Group Inc v Zahoor  EWHC 165 (Ch), in which Collins J reviewed the authorities and reiterated that the emergence of the truth was not a sufficient public interest to override privilege, as the “balance between privilege and truth has already been struck in favour of the former….” – though on the facts of that case the judge found that the documents in question had been created in furtherance of fraud and therefore there was no privilege.
The defendant argued that the documentation showed the relevant paragraph of the claimant’s witness statement to be “wholly false” and so should be admitted as going to the claimant’s credibility. The court rejected this argument on various grounds, including that the documentation was created long before the witness statement and so could not possibly, in contrast with Istil, be said to have been created in furtherance of fraudulent conduct or deception of the court. It was therefore not enough that it might help to reveal the truth.
The defendant also sought to rely on the claimant’s own assertions in defending the proceedings brought by Afsana, to the effect that UAE law did not recognise privacy between husband and wife. The Court of Appeal rejected this attempt, saying that if the defendant had wanted to rely on UAE law, it had to do in the proper form, through evidence of an appropriately qualified expert. In any event:
- the claimant’s assertions in that case were not on point, as the alleged confidential information which was the subject of Afsana’s claim was not said to include material that was privileged; and
- even if Afsana was entitled under UAE law to access the claimant’s confidential and privileged documents, there was no legal basis for an argument that she was then entitled unilaterally to pass them on to third parties such as the defendant.