Court Clarifies When Confidentiality And Privilege Can Be Lost Over A Document Referred To In Open Court

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:

Sufficient publicity is given to the contents of the relevant document so that the information contained cannot be regarded as confidential2; or 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...