In the case of SRJ v Persons Unknown ( EWHC 2293 (QB)) a Government contractor has failed in a bid to persuade a judge to order a firm of solicitors to give it the identity of one of its clients who is alleged to have published confidential information in internet blogs.
Sir David Eady decided that the individual’s identity was protected by legal professional privilege, and that even if that were not the case there were “powerful” reasons for not overriding the solicitor’s duty of confidentiality to the client. None of the parties in the case was identified.
The claimant, referred to as SRJ, which provides services to the UK and other governments, sought an order which would identify a man who was a former client of the law firm, referred to as D and Co.
SRJ said it had reason to believe that the man, who was the author of at least two blogs in which confidential information had appeared, was a current or past employee.
Sir David Eady said SRJ’s belief was based not only on the nature of the confidential information the man had apparently disclosed, but also on the terms of a unilateral undertaking he gave on May 8 – the day on which he withdrew instructions from D and Co – that he did not hold any confidential information other than “in connection with any employment relationship”. He added:
“That is effectively a half-admission that he retains some such information obtained while in employment with the claimant.”
SRJ also wanted the man’s name so it could assess the risks he posed, and might continue to pose, in relation to other confidential information, so as to protect its own and its clients’ interests, and also because he was in breach of a High Court judge’s order requiring him to provide confirmation on oath that all domain names and e-mail addresses used in connection with the relevant blogs had been transferred to the claimant, or deleted, and that all materials containing confidential information held by him have been delivered up.
The judge said there appeared to be no dispute that the court had an inherent jurisdiction to make an order requiring solicitors to disclose a client’s details – which was confirmed, but not bestowed, by s.37(1) of the Senior Courts Act 1981 – and/or pursuant to its jurisdiction in respect of solicitors as officers of the court.
The solicitor who had advised the man had said in a witness statement that the man had given him what he believed to be his true name “in the strictest confidence and for the purpose only of obtaining my advice and assistance”, said the judge, who commented that the lawyer had been “scrupulously careful in treading a delicate path”. Sir David Eady said:
“I have come to the conclusion, in the light of the circumstances of this unusual case, and in particular the evidence given by his solicitor, that the information as to the Defendant’s identity was indeed the subject of legal professional privilege and thus protected (whether “absolutely” or according to settled practice). Even if it were not, there are powerful reasons not to override the duty of confidence. It was not simply a piece of neutral background information, as would generally be the case with a client’s name, since both he and his solicitor were well aware that the Claimant was keen to establish his identity (for perfectly legitimate reasons): it was accordingly central to their discussions about the retainer that confidentiality should be maintained .
I am conscious of the concerns of the Claimant, on behalf of itself and its clients, as to possible harm arising from the Defendant’s breaches of confidence. I do not wish to minimise these concerns for one moment, and it is naturally with some reluctance that I find myself unable to grant the relief sought. Nevertheless, in weighing those matters against the plainly important policy considerations underlying both confidence and legal professional privilege, I must take into account the evidence to the effect that these breaches of confidence took place some time ago; that the blogs appear to have been dormant for some time; and that the Defendant has given a unilateral undertaking to protect the Claimant’s confidential information in the future. Of course, I acknowledge that he is in breach of the order made by Wilkie J and that the Claimant, for no doubt good reason, is disinclined to trust his assurances. Nevertheless, I am not persuaded in all the circumstances that it is necessary to go behind the undertaking of confidence given by the Defendant; still less that it would be appropriate, or in accordance with law, to go behind the legal professional privilege which I have upheld” .
Sir David acknowledged that the man was in breach of the High Court order, and that SRJ was, “for no doubt good reason” not inclined to trust his assurances, adding: “Nevertheless, I am not persuaded in all the circumstances that it is necessary to go behind the undertaking of confidence given by the defendant; still less that it would be appropriate, or in accordance with law, to go behind the legal professional privilege which I have upheld.”
This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.