Lachaux v Independent Print Ltd/ Evening Standard Ltd

Where legally privileged documents have been obtained and disclosed without authority, the court’s equitable confidentiality jurisdiction ordinarily requires intervention. The ordinary principles governing discretionary injunctions still apply, including delay, the claimant’s conduct and public-interest considerations. However, the public interest in establishing the truth, including avoiding false vindication in libel proceedings, does not by itself justify allowing privileged material to be used. The balance between legal professional privilege and truth has already been struck in favour of privilege. Relief may be refused where disclosure concerns misconduct or another sufficient public interest, but no such factor was established here.

The claimant brought applications in three related libel actions for delivery up of documents and injunctions restraining the defendants from using them. The documents principally comprised a copy or draft of a communication to a French lawyer seeking legal advice about the claimant’s marriage and child arrangements. The defendants had obtained the documents from the claimant’s former wife and sought to use them to challenge the claimant’s evidence and support their justification defences.

The issues were whether the documents remained confidential, whether any duty of confidentiality had been breached, and whether the court should refuse relief in its discretion, particularly because use of the documents might assist the emergence of truth in the libel proceedings.

1. Relief granted. The court granted injunctions restraining use of the documents and ordered such further relief as might be just, subject to submissions on the form of order.
2. Communications between a person seeking legal advice and a lawyer are prima facie highly confidential and protected by legal professional privilege. The privilege belongs to the client. The court accepted the principle stated in Anderson v Bank of British Columbia (1876) 2 Ch D 644.
3. The equitable jurisdiction protecting privileged documents after disclosure is governed by the ordinary principles applicable to discretionary equitable remedies. The court ordinarily intervenes, but may consider matters such as delay, the conduct of the claimant and public-interest considerations. The court adopted the summary of the law in Imerman v Tchenguiz [2010] EWCA Civ 908; [2011] Fam 116, including the principles stated in ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch); [2003] 2 All ER 252.
4. Where legal professional privilege applies, the public interest in the emergence of truth is not, of itself, a sufficient reason to refuse an injunction. That remains so in defamation proceedings, despite the distinct public interest in preventing a claimant from obtaining vindication on a false basis. The privilege is equally important to claimants and defendants.
5. The evidence of earlier dissemination was too vague to establish that the documents had lost their quality of confidence or that an injunction would serve no further purpose. Nor could the court assume, without expert evidence, that all provisions of Dubai law were contrary to English or French public policy.
6. The court was not satisfied on the papers that the claimant had lied, had threatened to advance a knowingly false case, or had acted improperly in the related privacy proceedings. The defendants’ additional equitable arguments therefore did not justify refusing relief.

First-instance interlocutory decision. The judgment records earlier decisions in the related libel proceedings, including the meaning ruling by Sir David Eady at [2015] EWHC 620 (QB) and the serious-harm ruling by Warby J, but no appeal from those decisions is stated.