The recent High Court decision in London Borough of Redbridge and another v Johnson [2011] EWHC 2861 (QB) is a reminder that where privileged documents are disclosed inadvertently (here pursuant to a subject access request under section 7 of the Data Protection Act 1998) privilege will not always be lost. In some circumstances it may be possible to obtain an injunction to prevent subsequent disclosure or use of the documents by the recipient.

An injunction will not be granted where the documents have entered the public domain. However, this decision suggests that the courts may take a surprisingly robust view as to when privileged material has (or has not) entered the public domain, particularly as a result of unauthorised disclosure by the initial recipient. Here it was held that circulation to numerous third parties, including the press, did not amount to putting the material in the public domain and so there was no loss of privilege.

The case also suggests that the court’s approach to the question of whether an injunction should be granted may differ depending on whether the inadvertent disclosure took place as part of the disclosure/inspection process in litigation. The decision may however be subject to appeal; an application for permission is due to be heard next month.

Background

The defendant, who was employed by the claimants, obtained various documents from them pursuant to a subject access request under section 7 of the Data Protection Act 1998 (which allows individuals to access their personal data held by third parties, subject to certain requirements). The documents obtained included two e-mails containing legal advice provided to the claimants by their solicitors.

The defendant wrote to the claimants informing them that he had obtained the e-mails, and attaching copies. He said that he had registered a complaint with the SRA of gross professional misconduct by the solicitors in respect of the advice given. He also stated that he had publicised one of the e-mails to his union, with the suggestion that they in turn publish it to union members, and had also provided it to the local and national press.

The claimants’ solicitors responded to the defendant explaining that the e-mails were legally privileged and confidential and seeking undertakings in relation to further use, which he refused to provide. The defendant then sought to use the e-mails in employment tribunal proceedings he had brought against the claimants (alleging disability discrimination and constructive unfair dismissal). The claimants successfully applied to the tribunal to prevent such use.

Decision

In this action the claimants sought an order preventing the defendant from disclosing or otherwise making use of the claimant’s confidential information (save for the purposes of the complaint to the SRA) and requiring the defendant to deliver up or destroy any hard copy or electronic documents containing the claimant’s confidential information. The claimants applied for and obtained an interim injunction preventing disclosure or use of the e-mails pending further court order.

The judge (Supperstone J) said it was “plain that the documents with which these proceedings are concerned contain privileged legal advice, that they were provided inadvertently to the defendant and there has been no waiver of privilege”. The only questions were, he said: (1) whether privilege had been lost because the documents were in the public domain; and (2) whether disclosure should take place in the public interest.

Answering both questions in the negative, he granted summary judgment on the claimants’ claim.

The public domain?

The defendant had shown or copied the e-mails to various parties, which fell into the following categories considered by the judge:

  1. Courts and tribunals: Following commencement of the current action, the defendant had issued a separate High Court claim against the claimants in which he purported to quote from the e-mails and also attached copies of them. However, in light of the interim injunction granted in the current action, the court had sealed the file so that no non-party could see the documents without the court’s permission. Further, the employment tribunal documents were not accessible and the hearing was in private
  2. Newspapers: Although the e-mails had been copied to the press, there was no evidence that they had been published or referred to in the newspapers, and the newspapers had all been put on notice of the interim injunction.
  3. The unions: They were on notice of the injunction and there was no evidence of any publication by them.
  4. Legal advisers: They were on notice and would appreciate their obligations as to confidentiality, and there was no evidence of publication by them.
  5. Personal contacts: There were six family members or close friends of the defendant to whom disclosure had been made. This did not amount to putting the e-mails in the public domain.
  6. Others: Disclosure had been made to 15 other individuals or organisations, including employees or officers of the claimants (who were under confidentiality obligations in any event) and the SRA (to which the defendant was expressly permitted to disclose the documents). Most of the others had responded and said they either did not receive the e-mails or would keep them confidential. Another four were on notice of the injunction but had not replied. Disclosure to them did not amount to putting the e-mails in the public domain.
  7. Websites: The injunction and/or the advice had been referred to on Tribunal Watch and the Super Injunction Blog. Neither disclosed the contents of the e-mails or referred to specific legal advice, and so did not put them into the public domain.

In the judge’s view it was clear that the documents were not in the public domain. He observed that, to the extent the documents had been disclosed to third parties, this had been done by the defendant and he should not be able to take unfair advantage of his misuse of confidential information.

Disclosure in the public interest?

The defendant argued that even if the e-mails were not already in the public domain, disclosure should be permitted in the public interest on the basis that the advice was “illegal”, although he did not explain how that was the case.

Having read and considered the e-mails, and after reviewing the authorities, the judge concluded that the privilege was absolute, subject to the fraud exception which did not apply in this case, and so it was not appropriate to conduct a balancing exercise to determine whether disclosure should nonetheless be permitted. If, contrary to that view, the court was to conduct a balancing exercise, then (for reasons given in a confidential annex to the judgment) the judge was satisfied that the privilege should not give way to any other public interest requiring disclosure.

Comment

This judgment is interesting for its consideration of what will, or will not, amount to putting privileged material in the public domain such that the benefit of the privilege is lost. The judge takes what might be seen as a surprisingly robust view on the facts of this case, concluding that circulation of the privileged e-mails to numerous third parties, including the press, did not have the effect of putting the material in the public domain.

The judge’s view is clearly influenced, at least in part, by the fact that the material was circulated by the defendant, who received the material in error, rather than the claimants who were entitled to the privilege. The judge commented that the defendant “should not be able to take unfair advantage of his misuse of confidential information”. It seems inevitable that if the claimants had circulated their own privileged material so widely, without seeking to impose any obligations of confidence on the recipients, the benefit of the privilege would have been lost.

The judgment may also appear surprising in that it moves directly from the fact that the privileged material was provided in error to the conclusion that there was no waiver of privilege. Where privileged material is provided in error to an opponent in the course of disclosure / inspection in litigation, the question of whether the material can be recovered depends on whether there has been an “obvious mistake”. The relevant principles were summarised by the Court of Appeal in Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors [2002] EWCA Civ 780:

  • A solicitor considering documents made available for inspection owes no duty of care to the opponent and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.
  • Where such documents include privileged documents made available in error, it will in general be too late to claim privilege and attempt to correct the mistake by obtaining injunctive relief.
  • However, the court can intervene where justice requires, as for example in the case of inspection procured by fraud.
  • In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
  • Where the documents are received by a solicitor, the mistake will be obvious if either the solicitor appreciates that a mistake has been made, or if that would be obvious to a reasonable solicitor in his position.
  • In Al Fayed the court did not have to decide what test applies where the documents are received by a litigant in person, rather than a solicitor, but seemed to prefer a test based on what would be obvious to a reasonable lay person in the position of the recipient, rather than a reasonable solicitor.

In this case, the documents were provided to the defendant pursuant to a subject access request under the Data Protection Act, rather than through disclosure / inspection in litigation. Although it is difficult to see why a recipient of information should be under a stricter duty in those circumstances, the cases do seem to differentiate between cases where privileged material is inadvertently provided on disclosure/inspection in litigation and other cases of inadvertent disclosure.

In Pizzy v Ford Motor Company Limited [1994] P.I.Q.R. P15, the Court of Appeal said: “Cases of discovery [disclosure] apart, an injunction will usually be granted to restrain the use of communications that are both confidential and privileged unless they have already been adduced in evidence or otherwise relied on at trial”. Where the case is one of disclosure in litigation, however, the authorities show that there are special considerations, in particular that parties should ordinarily be entitled to assume that where documents are made available through the disclosure/inspection process, any privilege which might otherwise have been claimed has been waived.

Accordingly, it seems that where a party’s privileged documents are inadvertently disclosed outside the disclosure/inspection process, the party may be able to obtain an injunction without the need to establish that the error was “obvious”. It may be that on the facts of this case it was clear in any event that the defendant appreciated that the e-mails had been disclosed to him in error.