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

• Published date: 28 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms 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...