Claim To Privilege: What If You Find An Opponent's Confidential Document?

• Published date: 23 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright
• Author: Antony Corsi and Gill Davy

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...