SRJ v Person(s) Unknown (Author And Commenters of Internet Blogs)

The High Court has jurisdiction to order solicitors to disclose a client’s identity, but the existence of jurisdiction does not determine whether disclosure is proper. Legal professional privilege may protect a client’s identity where it was communicated confidentially for the purpose of obtaining legal advice and was integral to the retainer. The question is fact-sensitive; a name is not automatically privileged merely because it is held by solicitors, nor is it automatically excluded from privilege. Where privilege does not apply, the court must consider the importance of confidential legal advice, access to legal advice and all the circumstances in deciding whether disclosure is just and convenient. Strong public interests in enforcing court orders may be outweighed by privilege and confidence.

The claimant, a corporate provider of services to governments, sought disclosure from its former solicitors, D & Co, of the identity of an anonymous former client. The client was alleged to have authored blogs containing confidential information and was in breach of an order requiring delivery up of confidential material and related information.

The solicitors resisted disclosure on the basis that the identity had been communicated in confidence for the purpose of obtaining legal advice, and was protected by legal professional privilege. The central issue was whether the identity was privileged and, if not, whether disclosure should nevertheless be ordered in the exercise of the court’s discretion.

1. The application for disclosure was refused and dismissed. The court had jurisdiction to require solicitors to disclose a client’s details under its inherent jurisdiction, confirmed but not bestowed by section 37(1) of the Senior Courts Act 1981, and under its jurisdiction over solicitors as officers of the court.

2. Legal professional privilege applies only to communications made for the purpose of seeking or receiving legal advice. A client’s name, address or contact details are not privileged merely because they are recorded by solicitors or create a channel through which advice may later flow. The qualification is that privilege may arise where, viewed in context, the information was given confidentially for the purpose of obtaining legal advice and its disclosure would reveal or undermine that confidential relationship.

3. The court accepted the approach in JSC BTA Bank v Ablyazov that the question is fact-sensitive and that confidentiality is central to the analysis. The court must consider all the circumstances in deciding whether an order is just and convenient, while taking account of the absolute nature of the right to confidential and privileged legal advice and the prior right of access to such advice.

4. On the evidence, the defendant’s identity was privileged. The identity was disclosed using a pseudonym, in circumstances where anonymity was expressly required, and was inextricably connected with the legal advice and negotiations for which the solicitor was retained. It was not neutral background information. Even if privilege had not applied, the duty of confidence should not have been overridden. The historic breaches, dormant blogs and unilateral undertaking reduced the need for disclosure, although the claimant’s concerns and the breach of the earlier order were acknowledged.