Shepherd v Fox Williams LLP & Ors

Legal professional privilege is a fundamental and absolute right once established. Relevance, disclosure obligations or other policy considerations cannot override it. Disclosure of privileged material to a third party does not necessarily waive privilege. The question is whether confidentiality was destroyed, assessed by reference to the nature of the information, the purpose of the communication and any express or implied obligation of confidence. Where privileged documents are sent to a person’s personal email address for a limited purpose, and are subsequently copied to an employer’s system without the sender’s knowledge or authority, privilege is not necessarily waived against the employer.

The claimant sought delivery up and destruction of privileged and confidential documents held by the defendants, solicitors acting in related employment tribunal proceedings. The defendants initially resisted the claim but later delivered up or destroyed the principal documents, while disputing liability and costs.

The remaining substantive issue was whether the claimant had waived privilege by emailing the documents to his partner, who later accessed them through her work email and thereby caused copies to be stored on her employer’s server. The claimant applied for summary judgment under CPR Part 24.

1. The claimant succeeded on the action and the summary judgment application. He was entitled to delivery up and destruction of the Privileged Documents and to his costs.
2. Legal professional privilege is a fundamental substantive right and, once established, is absolute. It does not yield to competing policy considerations or to the relevance of the documents. The principle in R v Derby Magistrates [1996] AC 487 applied.
3. Privilege depends on confidentiality. A document remains confidential where it has been communicated to a third party in circumstances expressly or impliedly preserving confidentiality against the rest of the world. The inquiry concerns whether the information had the necessary quality of confidence and was imparted in circumstances importing an obligation of confidence.
4. The claimant sent the documents to his partner’s personal email address for the limited purpose of review and comment. She knew they were privileged and confidential. There was no evidence that the claimant sent them to her work address, authorised their storage on the employer’s server, knew of the employer’s electronic information policy, or contemplated disclosure to the employer. The resulting storage on the server therefore did not waive privilege against the defendants.
5. The defendants’ waiver case had no factual foundation and was contradicted by the evidence. Summary determination was accordingly appropriate. The defendants were ordered to provide affidavits explaining and confirming delivery up or destruction, identifying any electronic copies not deleted and explaining why, with appropriate undertakings restricting their use.