JSC BTA Bank v Ablyazov & Ors

The court has jurisdiction under Senior Courts Act 1981, section 37, to make ancillary orders needed to secure the effectiveness of an injunction. The statutory test is whether the order is just and convenient. In exercising that jurisdiction, the court must take account of both legal professional privilege and the prior right of access to confidential legal advice. Contact details deliberately created and supplied confidentially to enable a client to communicate with solicitors for legal advice may themselves be privileged. An order should ordinarily be refused where its foreseeable effect would deprive a person, including a contemnor, of access to necessary legal advice, notwithstanding the public interest in enforcing court orders.

The claimant sought further disclosure orders against the defendant’s solicitors. The orders required disclosure of the telephone number and email address used for confidential communications between the solicitors and the first defendant, who had been committed for contempt, had gone into hiding and had failed to comply with court orders.

An earlier ex parte order requiring disclosure of contact details had been made by reference to JSC BTA Bank v Solodchenko [2012] 1 AER 735. On the renewed application, the solicitors argued that the proposed disclosure would infringe legal professional privilege and would foreseeably deprive the first defendant of access to legal advice. The central issues were jurisdiction, privilege and the exercise of the court’s discretion.

1. Application dismissed. The court had jurisdiction under section 37 of the Senior Courts Act 1981 to make ancillary orders securing the effectiveness of an injunction. The relevant question was whether disclosure was just and convenient. It was unnecessary to decide the separate jurisdiction relating to directions to solicitors as officers of the court.
2. The court rejected a rigid distinction between an order being necessary to make an injunction effective and an order being just and convenient for that purpose. The latter formulation reflected the statutory language and required consideration of all the circumstances.
3. Jurisdiction was not unrestricted. The court had to take account of the absolute nature of legal professional privilege and of the anterior right of access to confidential legal advice. Those considerations might make an order unjust and inconvenient even though it would assist enforcement.
4. The telephone number and email address were not mere administrative contact details. Their function was to enable the first defendant to seek and receive legal advice, and they had been supplied in confidence for that purpose. They were therefore protected by legal professional privilege. The cases concerning attendance records, names and ordinary contact numbers were materially different and did not govern the present facts.
5. There was a genuine tension between enforcing contempt, freezing and receivership orders and preserving access to legal advice. The foreseeable consequence of disclosure would be that the first defendant would either risk detection or cease using the facilities and thereby lose access to his solicitors. That consequence was attributable in substance to the order, even if the immediate choice would be his.
6. The first defendant’s contempt and concealment did not make him an outlaw. His continuing appeal and need to defend substantial claims made access to legal advice particularly important. The balance therefore favoured refusing the order.