Court clarifies when confidentiality and privilege can be lost over a document referred to in open court

By:

Summary

In SL Claimants v Tesco plc [2019] EWHC 3315 (Ch), the High Court has held that a solicitor’s attendance note did not lose privilege despite the note being disclosed to the SFO and then referred to in open court. The SL Claimants sought to obtain an order for specific disclosure of an attendance note taken at a meeting between a senior in-house lawyer at Tesco and their solicitors, Freshfields Bruckhaus Deringer LLP. Tesco refused consent to disclosure of the document and instead asserted that legal professional privilege continued to exist over the note despite the fact that references to information contained therein had been made in open court.

Orders for disclosure

The SL Claimants argued that the note had been publicly disclosed during the course of a related set of criminal proceedings, and confidentiality and privilege had therefore been waived on the note in its entirety.

During the related criminal proceedings, several extracts from the note - including the first 3 pages in full - were either read out, paraphrased or reviewed by the judge.

Consequently, the SL Claimants argued that the threshold for determining when privilege to a document elapses had been met when the note was discussed in open court in the related proceedings. Accordingly, they submitted that the note was now no longer confidential and that disclosure of it should be ordered as a relevant document in these proceedings.

There was no argument in relation to waiver of privilege as Tesco had not sought to rely on the document, and the only question was therefore whether privilege had been lost by the document ceasing to be confidential. The relevant test for identifying when confidentiality over a document is lost was applied by Hildyard J in considering this application. A document can “destroy its confidentiality” in two ways1. Specifically this occurs if:

  1. Sufficient publicity is given to the contents of the relevant document so that the information contained cannot be regarded as confidential2; or
  2. the document is referred to publicly so as to engage the principle of ‘open justice’ whereby the full document must be disclosed to enable the public to understand the judicial determination of the case3.

The extent to which the publicity given to a specific document will destroy its confidentiality is a question of “fact and degree” which the court will assess on a case-by-case basis having regard to the importance of public policy considerations. The court is concerned with providing transparent access to justice for the public through the disclosure of the information considered by the court when determining cases. The importance of these considerations was recently stressed by the UK Supreme Court4.

Distinction between a document and the information contained therein

Hildyard J also considered the distinction between a document itself and its contents when considering issues of confidentiality and privilege. He agreed with the arguments advanced on behalf of Tesco that a document could be partially disclosed causing only the disclosed information to lose privilege whilst the document as a whole retained privilege.

It was found that references to, and the judge’s reading of, the notes in the criminal proceedings did not require the disclosure of the entirety of the notes to enable the public to understand the decision that was made by the criminal court as the note was not significant enough in informing the judge’s decision on the matter before him5. Therefore, the continuation of privilege over the relevant document did not infringe the principle of open justice and disclosure was not required.

Conclusion

The judgment in SL Claimants v Tesco plc serves as an important reminder of the extent that privileged documents will remain confidential when referred to in part in open court, or where they are otherwise partially publicly disclosed. This decision should provide comfort to in-house counsel when documenting privileged conversations as the court will be reluctant to order disclosure of a privileged document in its entirety unless 1) substantially the whole of the relevant part of the document has been made public, or 2) disclosure is truly necessary to enable the public to understand the reasons for the Court’s determination. Accordingly, the threshold for the disclosure of privileged material will be relatively high.


Para. 37 of the Judgement (SLC Claimants v Tesco plc (CMC))

Serdar Mohammed v Ministry of Defence [2013] EWHC 4478 (QB)

Gotha City v Sotheby’s and Another [1998] 1 WLR 114

Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd [2019] 3 WLR 429

Para. 42 of the Judgement (SLC Claimants v Tesco plc (CMC))