Napier & Anor v Pressdram Ltd

Information is confidential in equity only where its nature and the circumstances of receipt are such that a reasonable person in the recipient’s position ought to recognise an obligation of confidence. A private, correspondence-based professional disciplinary process does not, by itself, make its outcome confidential to the parties. The position differs where the parties have chosen a genuinely confidential contractual procedure, or where intrinsically private information is disclosed. A public body cannot ordinarily impose confidentiality on a complainant involuntarily merely because its investigation is conducted privately. Statutory restrictions on publication by a regulator or ombudsman do not, without more, restrict publication by the parties. Where no duty of confidentiality exists, an interim restraint under section 12(3) of the Human Rights Act 1998 cannot be justified on that basis.

Michael Napier, a solicitor, and Irwin Mitchell appealed against Eady J’s refusal to restrain Private Eye from publishing information about a Law Society finding that the solicitor had breached conflict-of-interest rules and had been reprimanded. They also sought to prevent identification of the solicitor and firm in reporting an opinion of the Scottish Legal Complaints Commission criticising the Law Society’s handling of the complaint.

The appeal arose from the decision reported at [2009] EWHC 39 (QB). The central issue was whether the complainant owed the solicitor an equitable duty of confidentiality in relation to the Law Society adjudication or the SLCC opinion, so as to support interim relief under section 12(3) of the Human Rights Act 1998.

1. Appeal dismissed. The court formally granted permission to appeal, agreed with Eady J’s decision, and dismissed the appeal. Since the complainant owed no relevant duty of confidentiality, it was unnecessary to consider the respondent’s notice based on public interest.
2. Absent contract or statute, a duty of confidentiality arises only where the information is of a nature, and was obtained in circumstances, such that a reasonable person in the recipient’s position ought to recognise that it should be treated as confidential. The law must respect the value of reporting truthful facts. The court was concerned here only with the fact of the adjudication, the finding of breach and the reprimand, not with intrinsically private information that might be disclosed during an investigation.
3. The Law Society’s extra-statutory complaints scheme was a public regulatory process. Its correspondence-based and private operation did not itself create an equitable obligation binding the complainant. The parties had not been offered a choice under which using the informal process carried an express or understood obligation to keep the result confidential. Nor did the scheme become unworkable if its outcome could be disclosed.
4. The court distinguished the confidentiality arising from a chosen arbitration or similar contractual procedure. It also rejected reliance on the later, uncommenced provisions of sections 44D and 44E of the Solicitors Act 1974, as they could not retrospectively establish the alleged duty. Even if those provisions had applied, restrictions on publication by the Law Society would not necessarily restrict publication by the interested parties. The limited publication powers and privilege under section 23 of the Courts and Legal Services Act 1990 likewise did not imply confidentiality owed by a complainant to a solicitor.
5. The same reasoning defeated the claim concerning the SLCC opinion. It would be anomalous to restrain identification of the solicitor and firm when reporting of the underlying Law Society investigation was not restricted. The proposed reporting restraint was therefore rejected.

1. Court of Appeal (Civil Division): appeal from Eady J’s decision reported at [2009] EWHC 39 (QB). Permission to appeal was formally granted; the appeal was dismissed.