Winstone & Ors v MGB Ltd

Legal professional privilege protects confidential legal advice and related records. Confidentiality is not lost merely because privileged material has reached a small group of journalists or investors. It is lost when the information is known to a substantial number of people. An injunction may restrain use of privileged material by claimants who obtained it innocently, subject to the court’s discretion, including any delay and its circumstances. Delay is evaluated case by case and does not create a fixed tariff. By contrast, statements made openly by a senior company representative at a public event may lack the requisite confidentiality.

The defendant applied for injunctive relief in multiple phone-hacking claims. It sought to restrain use of a privileged note made by an in-house lawyer in connection with an earlier employment claim, and of comments made by its chairman at a public company meeting and reception. The claimants relied on the material in pleadings concerning the defendant’s knowledge of phone hacking and alleged concealment.

The application raised whether the two items retained confidentiality, whether privilege could be asserted against claimants who had obtained the material from third parties, whether delay barred relief, and whether pleaded passages should be struck out.

1. Partington Note. The note remained confidential. Knowledge of its existence or contents by a small group of investigative journalists and at least one investor did not amount to knowledge by a substantial number of people. The principle stated in Stephens v Avery [1988] 1 Ch 449 was applied.
2. Because privilege subsisted, the court could restrain claimants from using the note or secondary evidence of its contents, even though they had obtained the information innocently. The principle in Goddard v Nationwide [1987] 1 QB 670 was applied. Delay was not an absolute bar and required a fact-sensitive assessment.
3. Although injunctive relief was granted, the pleaded words were not struck out because they could be proved by other evidence. Redactions to the relevant documents and transcript were directed.
4. Grigson Comments. The comments lacked the requisite confidentiality. They concerned a widely publicised issue and were made by the chairman at a public AGM and reception in the presence, or likely presence, of journalists and shareholders. MGN had also waited too long after receiving the transcript and allowing the comments to be pleaded and inspected. Injunctive relief was refused in relation to the comments.