Lachaux v Independent Print Ltd

Once legal professional privilege is established, the law has already struck the balance between confidentiality and truth. Neither the public interest in revealing the truth nor a wish to challenge a party’s credibility ordinarily permits use of the material. This applies equally in defamation and confidence litigation. Article 10 does not create a different rule. A fraud exception requires material to have been created in furtherance of fraud or deception. A claimed foreign-law entitlement to access a spouse’s documents must be proved and would not, without more, permit disclosure of privileged documents to third parties. Equitable relief may require their return, destruction and non-use.

The claimant brought libel proceedings against the publishers of articles concerning his marital dispute. A preliminary-issues decision in those proceedings had been given by Warby J: [2015] EWHC 2242 (QB).

The defendants received documents from the claimant’s former wife and sought to rely on them in the libel litigation. The documents recorded communications with a French avocat concerning the breakdown of the marriage and arrangements for the parties’ child. It was accepted that they were confidential and had originally attracted legal professional privilege.

Sir Michael Tugendhat ordered the return and destruction of the documents and restrained their disclosure or use, subject to specified exceptions. The publishers appealed. The central issue was whether they and their solicitors could retain and use the privileged information.

1. Appeal dismissed unanimously. Davis LJ, with whom Sharp and McFarlane LJJ agreed, upheld the order requiring return and destruction of the documents and restraining their use or disclosure.

2. The documents were plainly confidential and subject to legal professional privilege. There was no waiver and no fraud exception advanced as such. Following R v Derby Magistrates Court, ex p B, [1996] 1 AC 487, privilege is a fundamental condition of the administration of justice. Once established, it is not displaced by a balancing exercise between privilege and the public interest in revealing the truth. Istil Group Inc v Zahoor, [2003] EWHC 165(Ch), confirmed that the balance has already been struck in favour of privilege.

3. Defamation and confidence claims are not subject to a different general approach. Reliance on Article 10 did not justify use of privileged material. The documents pre-dated the claimant’s later witness statement by more than four years. They could not have been created in furtherance of a fraud or deception of the court, and they did not show that the claimant had lied. Material going solely to credit would not ordinarily be disclosable in any event.

4. A pleading asserting foreign law was not evidence of that law. It required properly qualified expert evidence. Further, even an unproved entitlement under UAE law for the former wife to access the material would not establish a right to pass privileged documents to third parties. Confidential information and privileged information were not equivalent.

5. There was no proper basis to disturb the judge’s finding that the claimant had not failed to be frank, or his equitable discretion to grant relief. The later Family Division findings about reciprocal invasions of privacy did not affect that conclusion.

• Court of Appeal (Civil Division): dismissed the publishers’ appeals and upheld the injunction and associated orders: [2017] EWCA Civ 1327.

• High Court (Queen’s Bench Division, Sir Michael Tugendhat): on 18 December 2015 ordered the return and destruction of the privileged documents and restrained their disclosure or use. A detailed order was sealed on 15 March 2016.