JSC BTA Bank v Solodchenko & Ors

The High Court has jurisdiction to order solicitors to disclose a client’s confidential contact details where this is just and convenient to make a court order effective, including through the court’s ancillary jurisdiction and its power to regulate solicitors as officers of the court. Legal professional privilege remains absolute, but confidentiality in unprivileged information may yield to the enforcement of court orders. Disclosure of contact details may therefore be ordered to assist enforcement of a committal order, particularly where the contemnor remains represented and has not appealed. Solicitors should not ordinarily be required to disclose their client’s asset information where meaningful compliance would require use of privileged communications or client instructions. Funding information may be ordered where a proper basis for a non-party costs application is shown.

The claimant sought disclosure from Clyde & Co LLP, solicitors acting for the fourteenth defendant in proceedings concerning allegedly misappropriated investment assets. The defendant was subject to a worldwide freezing order, had failed to provide asset disclosure, had been found in contempt and had been sentenced to imprisonment in his absence.

The application sought three categories of information: the defendant’s historic and current contact details; information about assets within the scope of the freezing order; and information concerning the source of payment of the solicitors’ fees. The central issues were whether the court had jurisdiction to order such disclosure and, if so, how the competing interests of legal advice, confidentiality and enforcement of court orders should be balanced.

1. Jurisdiction. The court had jurisdiction to order disclosure of the requested information. It arose under section 37(1) of the Senior Courts Act 1981 and the ancillary jurisdiction recognised in A. J. Bekhor & Co Ltd v Bilton [1981] QB 923 and Maclaine Watson & Co Ltd v International Tin Council (No. 2) [1989] Ch. 286. It also arose from the High Court’s power to give directions to solicitors as officers of the court. The question whether the Norwich Pharmacal jurisdiction supplied an additional basis was left open.
2. Contact details. Legal professional privilege is absolute, but confidential information which is not privileged may be overridden by other considerations. The court had to protect the fundamental right to obtain legal advice while recognising the strong public interest in obedience to court orders. In the circumstances, the existing committal order was decisive. Disclosure of all historic and current contact details was ordered to assist the defendant’s apprehension, enforcement of his sentence and potentially the tracing of assets.
3. Asset information. The application for information about the defendant’s assets was dismissed. It was overwhelmingly likely that relevant information had been supplied for the purpose of obtaining legal advice and was privileged. The breadth of the freezing order meant that meaningful compliance would require client instructions, advice and the use of privileged material. Requiring solicitors to undertake that exercise would inhibit legal advice and place them in an impossible position.
4. Funding information. The funding disclosure application was also dismissed, subject to clarification as to whether the solicitors’ evidence included the committal proceedings. If an interested third party had funded the defendant’s participation in those proceedings, the claimant would be entitled to details of the funders. On the assumed clarification, there was no sufficient basis for further disclosure.

First-instance decision. No appellate history was stated in the judgment.