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High Court confirms that privilege is not always lost when legal advice is accidentally disclosed and disseminated.
Discovering that privileged legal advice, which is actually or potentially damaging to your case, has been inadvertently disclosed to the other party to litigation is every litigant's worst nightmare. In London Borough of Redbridge v Johnson the High Court has provided some comfort that such disclosure will not necessarily result in privilege being lost and your opponent being able to use those documents against you.
Any confidential communication between a client and his lawyer, which is made for the dominant purpose of seeking or giving legal advice or assistance, will be privileged (that is, it is protected from having to be disclosed to your opponent). However, privilege can only be claimed (and maintained) if the relevant document is, and remains, confidential. Privilege will be lost if the confidentiality of the document has been lost because the document has entered the public domain.
In London Borough of Redbridge v Johnson Mr Johnson obtained copies of emails of legal advice to Redbridge, his former employer, through a subject access request under the Data Protection Act 1998. He then disseminated the emails to newspapers, trade unions, and various other organisations and individuals. He sought to use the emails in proceedings against Redbridge on the basis that they were no longer privileged. The court determined that the disclosure was not sufficient to amount to putting the emails in the public domain. Key to this decision was the fact that Redbridge had acted quickly and obtained an interim injunction preventing use of the emails. This was obtained and served on third parties before there was any publication.
This case shows the importance of acting quickly when it is discovered that privileged documents have been accidentally disclosed. If the emails had been published by a newspaper or referred to in open court before the interim injunction was obtained restraining their use it is unlikely that the court would have come to the same the decision that they were not in the public domain. This case also serves as a reminder of the importance of considering privilege when providing documents under a subject access request. If there is any doubt about the status of a document, legal advice should be obtained.
For further information, please contact Peter Stewart, Partner, who is head of the department and a member of the Corporate Risk Management group.