High Court rules that identity of client is covered by privilege

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11 July 2014

High Court: powerful reasons not to override the duty of confidence

The High Court has rejected a bid to force a law firm to disclose the identity of a former client who revealed confidential information in an anonymous blog.

In a ruling where all the parties were covered by an anonymity order, Sir David Eady said the identity of a client could be the subject of legal professional privilege (LPP).

The claimant was described as a corporate entity which provides services to the UK and other governments. It sought an order requiring the solicitors, called D & Co in the judgment, to disclose the name of the defendant, who was a former client.

The defendant was the author of at least two blogs in which confidential information was published, and the claimant had reason to believe that he may be a current or former employee.

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Though he had provided a unilateral undertaking not to misuse the claimant’s confidential information in the future, the claimant said it still wanted to obtain his identity in order to assess whether he in fact posed a risk of doing just that.

Further, the defendant had breached an earlier order to provide confirmation on oath that, among other things, all confidential information had been delivered up, and the claimant wanted to enforce this.

A partner at D & Co explained to the court that he had been instructed by the defendant when it looked like he was close to reaching an agreement with the claimant, but on condition that his identity should be kept confidential and not disclosed.

The partner said in his witness statement: “I have taken the view at all times that disclosure of the client’s name would have the practical effect of disclosing confidential communications between lawyer and client.

“In other words, unlike the vast majority of cases, the identity of the client was not a routine communication but it was the very information which linked him to the case and potential liability to the claimant. In effect, the advice he sought was inextricably bound up with his anonymity.”

After considering the case law, Sir David concluded “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.

“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.”

The judge said it was “with some reluctance” that he came to this decision, given the concerns of the claimant about possible harm arising from the breaches of confidence. However, he took into account the evidence that the breaches took place some time ago, and that the blogs appear to have been dormant for some time, as well as the unilateral undertaking.


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