Claim to privilege: What if you find an opponent’s confidential document?
In Taylor & Ors v Evans (As Representative of the Labour Party) [2023] EWHC 935 (KB) the High Court considered the principles that will apply where privileged material belonging to one party to litigation has come into the possession of their opponent, other than through accidental disclosure during the disclosure process. The key question is whether, on the facts, the recipient should have understood that the privileged information was communicated in confidence.
Background
Nine individual claimants started proceedings following publication of a report by the Labour Party (the “Defendant”) in which they were named. Their claims against the Defendant included claims for breaches of data protection legislation and breach of confidence. The Defendant’s position was that it had not authorised publication of the report, which had been leaked by a separate group of five individuals against whom the Defendant brought third party claims under Part 20 of the CPR.
The current issue arose out of an internal investigation into the leak conducted by the Defendant. Various employees of the Defendant were asked by the Defendant to provide their work laptops for forensic analysis. During a review of one employee’s emails, the Defendant found a personal email she had sent to a solicitor the day before the report was published, which email was relevant to the issue under investigation, together with the solicitor’s reply. The Defendant located the email on the laptop even though the employee had sent it from her personal iCloud account because the employee had synchronised her iCloud account with her work Outlook account.
The employee was later included as one of the five third parties to the claim by the Defendant. The Defendant sought a declaration that the email was not privileged and could be deployed in the proceedings.
Court’s decision
The judge referred to a recent summary of the law in Jinxin Inc v Aser Media Pte Ltd & Ors [2022] EWHC 2856 (Comm), reiterating that confidentiality is an essential prerequisite of a claim to privilege and that the key question is whether the material remains confidential against the recipient, in which case there is no loss of privilege. In answering that question it was necessary to assess whether a reasonable person in the position of the party seeking to use the information would have understood from all the circumstances that the information was communicated in confidence, which required a detailed review of the facts.
Some of the relevant circumstances included that: (i) the employee mistakenly thought she had removed access to the contents of her i-Cloud account and personal documents; (ii) the Defendant was aware of her mistaken belief; (iii) in light of that mistaken belief the fact the employee imposed no constraints on the searches that could be undertaken was of little significance; and (iv) the email was obviously a request for legal advice and the reply was obviously a reply to that request and had been headed ‘legally privileged’.
In relation to the Defendant’s argument that the email was located on an employer-provided laptop, the judge commented that “if the fact that a document was sent from an employer-provided email account would not necessarily mean that it lost is confidentiality for all purposes (see Jinxin), the same should be true of the fact that the document was saved on an employer-owned laptop.” Taking the circumstances of its communication in the round, the circumstances in which the email were communicated were not such as to destroy its confidentiality against the Defendant.
The judge held that the Defendant should have realised that the email was confidential and refused to grant the Defendant’s request for a declaration that it could deploy the email in the proceedings.
Comment and key takeaways
The fact that a document has been sent from or saved on an employer’s device is not determinative in considering questions of loss of privilege. Rather, it will be necessary to look carefully at the facts and circumstances in each case to consider if the document was communicated in confidence, which means it can be difficult to draw clear lines in these cases.
This is illustrated by the case relied on by the Defendant in its submissions, Simpkin v The Berkeley Group Holdings Plc [2017] EWHC 1472 (QB). While there were similarities with the current case, differences in the facts and circumstances produced a different outcome. In Simpkin, an employee had provided documents to his solicitors for the purpose of seeking advice about his divorce. He had produced the documents at work and emailed them from his work email to his home email. When the employee brought a claim against the employer, the employer sought to adduce the documents. The judge held that the documents were not confidential as against the employer; they had been created and stored on the employer’s systems, were not password protected or separated from work documents and the employee was aware that he could not expect privacy in relation to documents stored on the work email server.
The judgment also illustrates a tactical point about how to approach such questions over privilege. The fact that a document is privileged does not necessarily prevent an opponent in possession of the document from using that document in legal proceedings. While the privilege holder may seek injunctive relief to prevent the document from being deployed, an injunction is an equitable and discretionary remedy, and therefore, the judge will take into account any equitable bars to relief, for example, any delay by the applicant in making the application and whether the applicant has come to court with clean hands. However, if the recipient of the document pre-emptively seeks a declaration that the email is not privileged, as in this case, then as the judge noted, the equitable bars are not relevant. The recipient of a privileged document who wishes to use it may therefore be in a better position if the party claiming privilege seeks injunctive relief; additional burdens will apply to the applicant and in some situations may affect the outcome of the application. Or the party claiming privilege may choose not to apply for injunctive relief at all.