Publishing of information about police inquiries


Confidentiality: investigation, but no charge…


One of the more uncertain areas of the law must be for those who are investigated by police or other agencies (see eg ZXC below) but not – yet, perhaps – charged with any offence. It is uncertain for the individuals concerned, for the journalist and other publisher (eg on social media) who may find out about it, and for any lawyer asked to advise. Can the fact of enquiries be reported by the media?


Broadly – and ‘broadly’ is the best that can be said – if a person is not charged, publicity will be banned. Once a charge is made open justice principles apply. If it is child care proceedings which are in issue, privacy continues once proceedings start; but if, on the same facts, a parent is prosecuted probably their name (but not that of the child) will be in the open.


Two very different aspects of confidentiality have been in the reports in the past three months: one (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020)) was an unsuccessful appeal from Nicklin J and the other and earlier a decision by Nicol J in Pharmagona Ltd v Taheri anor [2020] EWHC 312 (QB), [2020] WLR(D) 129 (17 February 2020). In Pharmagona a husband and wife were made subject to injunction not to publish or otherwise pass on information from their former employers to others, save if they were asked by enforcement agencies. It is the second – ZXC – with which this post is concerned.


‘Confidentiality’: towards a definition


But first, what is ‘confidentiality’ as a legal principle? In the 1980’s ‘Spycatcher’ case (Att Gen v Guardian Newspapers Ltd (No 2) [1988] UKHL 6, [1990] 1 AC 109 at 280 concerning release of government information received in the course of employment) Lord Goff said of confidentiality:


‘I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.’


The definition which – despite Lord Goff’s modesty, has been accepted as authoritative by text-book writers since – captures the three main components of ‘confidentiality’:


  • That information comes to the knowledge of the confidant, who knows it is confidential (or should know it is confidential – as in ZXC);
  • The situation is such that, where necessary, the confidant can be prevented from passing on confidences;
  • There is a public interest in confidences being protected (if need be).


Expectation of privacy during a criminal investigation


In ZXC the question was: ‘[2] to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.’ The parties to the appeal agreed that if someone is charged with an offence, there can be no expectation of privacy.


JXC was a senior employee of X Ltd a company which was the subject of a request for information from a UK ‘Legal Enforcement Body’ (UKLEB) in relation to X Ltd’s dealing with ‘a foreign state’. No one had been charged. UKLEB sent a long letter of request to the appropriate authority in the foreign state. The ‘confidential nature could not have been made clearer’ said Simon LJ (at [17]). The letter came into possession of a journalist for the defendant, who published it and the name of JXC. Nicol J said he had found it a ‘striking feature’ of the case that there seems to have been no appreciation in Bloomberg of the ‘highly confidential nature of the’ letter of request (at [24]).


Resolution of this case depends on the court assessing the facts in two stages:


‘[42] … Stage one of the enquiry is whether a claimant has a reasonable expectation of privacy in the relevant information? If the answer is yes, stage two involves an enquiry and evaluation as to whether that expectation is outweighed by a countervailing interest, in the present case Bloomberg’s right to freedom of expression under article 10.’


Thus – based on the House of Lords decision in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 – does the applicant start with a ‘reasonable expectation of privacy’ (eg balanced against the applicant’s own courting of publicity or the applicant’s own behaviour. If they do, the court must balance privacy against freedom of expression. Is the public interest in confidentiality outweighed by the public interest in freedom of expression?


The court held, as did Nicol J, that JXC had a reasonable expectation of privacy; but did that survive where he was under investigation by the police or otherwise. What JXC shows is that the law prefers that confidentiality be retained, but that there are no hard lines where an adviser or the court can be categoric. There are two important decisions in recent years, which – superficially at least – conflict: Khuja v Times Newspapers Ltd [2017] UKSC 49 (19 July 2017), [2017] 3 WLR 351 and Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J. Both are considered by Simon LJ.


In Khuja Mr Khuja was indicated by one witness as involved in a sex abuse inquiry; but he was not charged in the subsequent criminal proceedings. A seven justice Supreme Court (with Lords Wilson and Kerr in the minority) held that his name was correctly publicised. In Richard the BBC publicised the fact of a sex abuse inquiry concerning Cliff Richard, which resulted in no charges. Sir Cliff recovered damages against the BBC. Both cases are cited in JXC; but the minority’s judgment in Khuja is what the Simon LJ centres his definition of the modern law upon.


Confidentiality: public interests balanced between privacy and freedom of expression


Thus, for Simon LJ his resolution of this case can be found in summary, that if a person has not been charged (JXC had not even been arrested), publicity will generally be forbidden:


‘[82] … I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.’


In a short judgment Underhill LJ stressed that the confidentiality of the letter of request as between UKLEB and the foreign state may be one thing. JXC’s privacy may be a separate matter. He was a little more luke-warm than Simon LJ. He could see no basis for differing from Nicol J’s decision.


Confidentiality is critical to many aspects of privacy and in particular to many professional relationships. Privacy is not absolute (save in the case of the confidentiality in legal professional privilege); but it provides an important protection in many cases where it is to be balanced against the important public interest in freedom of expression.


David Burrows

19 May 2020


Court of Appeal: privilege and confidentiality in 2019


‘Yes, I remember Addlesee…’


The latter part of 2019 has seen at least three important cases in the Court of Appeal on the subjects of legal professional privilege (LPP) and confidentiality.


In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 (2 October 2019) the question was: ‘What happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved?’ said Lewison LJ in the Court of Appeal. Legal advice privilege (LAP), the more significant branch of LPP, endures till it is waived by the person entitled to it; if it is overridden expressly by statute; or where the iniquity exemption applies (ie where a person seeks legal advice to commit a crime or other such nefarious activity).


The brief facts of Addelsee – the reference in the heading above is to Edward Thomas’s‘I remember Adlestrop’ – the brief facts are that a group of investors paid into a scheme marketed by a company which was subsequently dissolved. The Crown had disclaimed any interest in bona vacantia. The investors brought a claim against the company’s lawyers in damages saying that the scheme was fraudulent. A Master refused to order disclosure of documents passing between the company and its lawyers. LAP remained despite the dissolution of the company, she said. The investors appealed.


The twin starting points for LAP, said Lewison LJ in the Court of Appeal, are R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513 and Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274. For him it was R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 which asserted that LAP was not just a question of evidence – ‘disclosure in legal proceedings’ – but it ‘was a fundamental human right’ ([13]-[15] and [61] and [62] per Lord Hoffman). LAP ‘is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice’.


Legal advice privilege: a fundamental right


But why is LAP a human right? The common law replies that it is a matter which is basic to the administration of justice. A client must be able to speak frankly to a lawyer. The client must be have entire confidence that nothing will be passed on to anyone else at all, save with the client’s consent. Lewison LJ (at [8]) cited Lord Taylor in the Derby Magistrates case quoting from Anderson v Bank of British Columbia (1876) 2 ChD 644 at 649 per Sir George Jessel MR:


‘[The client] should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him, should be kept secret, unless with his consent.’


Central to all this is the fact that only the client can waive privilege. In Bullivant and ors v The Attorney-General for Victoria [1901] AC 196 it was stated: ‘The mere fact that a testator is dead does not destroy the privilege’. So, said, Lewison LJ, it seems that LAP may be as important to ‘those left behind’ as it was to the deceased (at [35]). But surely the right must belong to someone.  If the person entitled to the privilege dies or ceases to exist, does not their privilege die with them? No, says Lord Taylor in the Derby Magistrates’ case. There can be no exception, he said, to the principle of ‘once privileged, always privileged’. And thus, LAP ‘attaches at the moment when the protected communication is made’ (Lewison LJ at [57]). LAP applies as soon as the advice is given, to the circumstances in which it was given – what was said and so on – and it survives until waived. The survival of the beneficiary of the advice is irrelevant.


‘Iniquity exemption’: pub chatter and an email?


Lewison LJ featured again in the second case, Curless v Shell International Ltd [2019] EWCA Civ 1710 (22 October 2019); though here the judgement was of the court (Sir Thomas Etherington MR, Lewison and Bean LJ). The case concerned Mr Curless who was involved in Employment Tribunal (ET) proceedings with his former employer, Shell. Drinking in a bar one evening Mr C heard a conversation between two individuals, which he assumed related to tactics for seeing off his claim. Later he saw an email from senior lawyer working for Shell, sent to him anonymously and not intended, by its author or recipient, to be seen by him.


In his ET proceedings Mr Curless referred (paragraphs 10 and 11) to both of these sources of information. The question was whether his pleadings, to the extent that they referred to what was said and in the email (paras 10 and 11) should be struck out since they were cover by LAP; but that if so, was that privilege inapplicable because on the iniquity principle (R v Cox and Railton (1884) 14 QBD 153; that it cannot be part of a lawyer’s job to advise wrong-doing, and that, if that is the case, no privilege can arise). The ET said LAP applied; but on appeal to the EAT Slade J said not.


The email was one which was routine where advice was sought and provided in employment law cases, said the Court of Appeal. And the conversation in the pub was little more than gossip; and could not be used to interpret the email. Neither were susceptible to a claim for ‘iniquity’. The judgment concluded with a short discussion of case law in relation to the ‘iniquity exemption’ starting from Cox and Railton and explaining why, as the law stands, the iniquity exemption, in the light of Barclays Bank plc v Eustice [1995] 1 WLR 1238, CA, can go further than dishonesty.


Confidentiality and undertakings


DSM SFG Group Holdings Ltd & Ors v Kelly [2019] EWCA Civ 2256 (19 December 2019) was dealt with more on the basis of confidentiality, than of LAP (though LAP arose on the facts); and an important subsidiary issue was that of undertakings given to the court. The facts by most standards, and the first instance decision under appeal, were remarkable. The respondent had taped conversations between the appellant’s in-house lawyer and their own solicitors over a period of six weeks. The company issued harassment and breach of confidence claims, alongside seeking an injunction against Kelly.


That he had bugged the appellant company’s lawyers (and then lied to the court about it: see [11]) was bad enough. That the conversations on the face of it must normally have been covered by privilege surely stood out? But then the first instance judge permitted the respondents to alter their undertaking (see [25]) – originally (1) not to use the recordings other than to defend the proceedings; but also (2) then to counter-claim. As Simon LJ put it, the appellant’s claims were resolved against them by the judge, but before the issue had even been tried:


‘[30] … The original undertakings protected the appellant’s confidential information until the issues in relation to the claim for breach of confidence were resolved; whereas the revised undertakings allowed the respondent to use and disclose the appellants’ confidential information, so as to make claims including claims against third parties, before he had established any right to do so. The Judge’s order had the effect of allowing the use of confidential material before the right to do so had been established, see Imerman v. Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116 at [142]. In effect, the order granted the respondent summary judgement on the issue of confidentiality, subject to reservations whose effect was necessarily uncertain.’


The amendment at (2) was deleted; so that the issue of confidentiality (and LAP) remained live on the company’s application. And, as the court made clear, the respondent’s confronted a stiff climb to prove the justice of his breach of the company’s confidence (still more any attempt to override LAP). For example, Lord Denning MR in Seager v Copydex Ltd [1967] 1 WLR 923 at 931B-E (quoted by Simon LJ at [40], and still good law in 2019), said this:


‘I start with one sentence in the judgment of Lord Greene MR in Saltman Engineering Co v Campbell Engineering Co [1948] 65 RPC 203, 213: ‘If a defendant is proved to have used confidential information, directly or indirectly obtained from the plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.’… The law on this subject… depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent.’


Further, a subject close to the practice of many lawyers, the court reminded litigants that undertakings given by parties to the court, can – in principle – be released on application by the party who gave it. However, that release should only be on a ‘significant change of circumstances’ being established by the applicant (see recently Lord Wilson at [11], Birch v Birch [2017] UKSC 53, [2017] 1 WLR 2959, [2017] 2 FLR 1031).


Privilege and administration of justice


So three cases on aspects of LAP; and, to a lesser extent, of confidentiality. All show the continuing clarity with which the common law treats privilege and confidentiality. Their  centrality to rights and the administration of justice remains as ever.