Privilege Not Lost Despite Opponent Obtaining Copies Of Documents In Foreign Proceedings

Published date28 March 2022
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmHerbert Smith Freehills
AuthorMs Anna Pertoldi and Maura McIntosh

The High Court has held that a defendant was entitled to maintain privilege over certain documents even though the claimants had obtained copies of the documents from a third party pursuant to subpoenas in Thailand: Suppipat v Siam Commercial Bank Public Company Ltd [2022] EWHC 381 (Comm).

The decision suggests that where a party has lawfully obtained documents in a foreign state which (as a matter of English law) are obviously privileged, that does not necessarily mean they will be available for use in litigation in England - particularly where the documents in question were obtained from a third party rather than the party entitled to assert the privilege and without notice to that party.

It is well established that, in determining whether privilege exists or has been lost, the English court will apply English law. The present decision suggests that the same is true for the question of whether or not a document remains confidential, where that question is being considered in the context of a claim that the document has lost confidentiality and is therefore no longer privileged.

The decision is also of interest for its discussion of how the courts will determine whether or not a document remains confidential for these purposes. It suggests that the question is not simply a matter of whether the document has entered the public domain - though if that has happened, it will be clear that privilege is lost. The question appears to come down to whether the document has been obtained in circumstances which import an obligation of confidence, meaning the document is not properly available for use. This will be the case where a party receives an obviously confidential document in error or through illegitimate means, but it is not limited to those situations. As the judge put it, whether confidence has been lost is a "contextual and factual" question.

Background

The 10th defendant (Siam Commercial Bank, or SCB) applied for an order prohibiting the claimants from using certain documents which the claimants had obtained from a third party (WEH) pursuant to subpoenas in Thailand. SCB submitted that the documents were subject to SCB's legal professional privilege and/or contained its confidential information, despite having been provided by SCB to WEH and produced by WEH to the claimants pursuant to the Thai subpoenas.

The claimants argued that the documents were no longer privileged as between themselves and SCB, including because the claimants had lawfully...

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