Shepherd v Fox Williams LLP & Ors [2014] EWHC 1224 (QB)

Case No IHQ/14/0135[2014] EWHC 1224 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 April 2014
Before
MRS JUSTICE SIMLER DBE
Between
SHEPHERDClaimantFOX WILLIAMS LLP & OTHERSDefendants
Mr Edmund Cullen QC (instructed by Collyer Bristow) for ClaimantMr Philip Jones QC (instructed by Fox Williams LLP) for DefendantsHearing Hearing dates: 1 April 2014
JudgmentIntroduction
[1]This is the claimant’s application for summary judgment on his claim for destruction and delivery up of certain documents (referred to as “the Disputed Documents”) in the possession of the defendants. On 27 March 2014 the defendants stated that they had delivered up/destroyed the documents falling within the category of most concern to the claimant without any admission of liability. On that basis the claimant has indicated that he is content not to press the claim in relation to the remaining documents (subject to two additional matters on which no agreement has been reached). Significantly, however, the parties have not been able to agree the position so far as costs are concerned. In those circumstances the application has proceeded largely for the purposes of determining its costs consequences.[2]The claim arises against the backdrop of currently pending proceedings in the employment tribunal between the Second Defendant (Fulbright & Jaworski International LLP, referred to as “FJI”) and one of its former employees, Francesca Liebling. Ms Liebling is in a relationship with the claimant and they are due to be married. She was dismissed by FJI on 25 March 2013.[3]In November 2013 Fox Williams, solicitors acting for FJI, gave disclosure in the employment tribunal proceedings of a number of documents and categories of documents relating directly to the claimant’s personal affairs. The documents included a draft Financial Statement prepared by the claimant and his solicitors, Collyer Bristow, for the purposes of a financial order in relation to divorce proceedings between the claimant and his former wife, referred to as M. This contained information which was highly personal to the claimant and obviously confidential, including:(i) information relating to medical conditions of the claimant and his son and a complete record of the claimant’s financial position (category A (i));(ii) annotated draft letters to be sent by Collyer Bristow to M’s solicitors in the ancillary relief proceedings (category A(ii)); and(iii) annotated drafts of a consent order prepared by Collyer Bristow for the purposes of without prejudice negotiations between the claimant and M (category A(iv)).[4]These documents are referred to in the correspondence and evidence as categories A (i), (ii) and (iv) and are collectively referred to as “the Privileged Documents”. Although at the outset the claimant had no idea how these and other documents came to be in the possession of FJI (and was told M had given them a number of these documents), it now appears to be common ground that the Privileged Documents were obtained by the defendants because they appeared on FJI’s server having been stored there as a result of Ms Liebling viewing or opening the documents on her work computer during the course of her employment with FJI.[5]There were other documents included in the disclosure given by Fox Williams in November 2013 as follows: a) a draft divorce petition obtained by the defendants from M; b) a screenshot of an email addressed to the claimant which appeared to have been obtained by someone illegally accessing his personal email account; and c) documents relating to disclosure made by him as arbitrator on a confidential basis in an American arbitration Association arbitration in which he had been appointed by clients of Fulbright and Jaworski LLP (a separate associated entity).[6]Given that the application for delivery up and/or destruction of documents in relation to categories outside the Privileged Documents is no longer pursued and since the defendants now accept that the Privileged Documents qualified as privileged, the only substantive issue remaining is whether there was a waiver of privilege (by virtue of the fact that the claimant emailed those documents to Ms Liebling) that defeats the claimant’s entitlement to their delivery up.[7]In short summary, the claimant contends that he has obtained substantially the relief he sought and is on that basis, prima facie entitled to his costs. He contends that no triable issue on the question of waiver of privilege arises because the facts are clear and there has been no waiver in law. So far as the remaining documents are concerned (in respect of which the application is no longer pursued) although there might arguably be a basis for a modest deduction in respect of costs incurred in relation to those documents, given the discreditable conduct of the defendants, the fact that the claimant made clear that the Privileged Documents were his main concern, and that little additional costs have in fact been incurred in relation to the other documents, the claimant maintains that he is entitled to his costs of the action and of the application without deduction; and to the additional orders sought.[8]Against that, the defendants contend so far as the other documents are concerned (in respect of which no application is pursued) they are entitled to their costs on the footing that the claim in relation to those documents is and always has been without merit and is now in effect, conceded. So far as the Privileged Documents are concerned they contend that the only arguable ground advanced by the claimant in relation to the Privileged Documents concerns the question whether they remain privileged; all other grounds previously advanced as a basis for delivery up and/or destruction have no merit whatever. Moreover, the defendants contend that the issues in relation to privilege and waiver, both factual and legal, cannot be determined summarily. The fact that the documents have been given up voluntarily should be given no weight in that determination. Accordingly, they contend that the summary judgment application should be dismissed with costs awarded in their favour.

The factual background

[9]On 4, 11 and 12 November 2013 (including by email dated 11 November from Paula Volkmer, an Associate employed by Fox Williams) Fox Williams provided copy documents (including the Privileged Documents) to Ms Liebling by way of purported disclosure and supplementary disclosure in the employment tribunal proceedings. Some of these documents were explained as having been obtained following correspondence with M in which Fox Williams informed her that if she did not provide them voluntarily, they would make an application for third-party disclosure. It cannot have been other than obvious to Fox Williams that the copy documents provided included privileged material given that the email refers expressly to the draft divorce petition between the claimant and M and to correspondence passing between solicitors representing the parties involved in that divorce. It is, to say the least, surprising in the circumstances that Fox Williams regarded it as appropriate simply to copy those documents to Ms Liebling without reference first to the claimant and without any apparent consideration of or reference to their privileged status. It might have been more understandable if Fox Williams merely disclosed these documents by listing them, but as long as they remained privileged, they would be immune from inspection and not capable of being used in the proceedings.[10]Having been made aware of the supplementary disclosure, by letter dated 18 November 2013 Collyer Bristow (solicitors for the claimant) wrote to Fox Williams pointing out serious concerns they had about the defendants’ retention of the Disputed Documents which were categorised in the letter as follows:
“A Documents relating to Mr Shepherd’s divorce (i) Mr Shepherd’s draft financial statement and this Firm’s, Mr Shepherd’s and Ms Liebling’s comments thereon; (ii) draft correspondence between this Firm and Charles Russell, Mr Shepherd’s ex-wife’s solicitors, and Mr Shepherd and Ms Liebling’s comments thereon; (iii) draft divorce petition presented in Mr Shepherd’s divorce; (iv) drafts of the consent order relating to the proposed financial settlement in Mr Shepherd and his ex-wife’s divorce and this Firm’s, Mr Shepherd’s and Ms Liebling’s comments thereon; (v) draft correspondence between Charles Russell and Farrer & Co and Miss Liebling; B a screenshot of an email addressed to Mr Shepherd, which appears to have been taken from a personal email account belonging to Mr Shepherd; C correspondence relating to and disclosures made by Mr Shepherd in a confidential AAA arbitration, which includes details of his remuneration for acting as arbitrator.”
[11]Significantly, Collyer Bristow pointed out that the documents at A(i) (ii) and (iv) were all subject to legal advice and litigation privilege, were without prejudice and highly confidential, containing as they did extensive financial and personal information. So far as document B was concerned, they stated that it must have obtained by accessing a password protected personal email account without authorisation, and suggested this meant it could only have been obtained by unlawful means in breach of the Computer Misuse Act 1990 and that any access to, copying, moving or use of this document by the defendants without the claimant’s authorisation would also fall within section 1(1) of the 1990 Act and be unlawful. Points were also made in relation to the Data Protection Act 1998 given that personal data appeared to have been processed by the defendants as a consequence of obtaining these documents; and to the judgment of the Court of Appeal in Imerman v Tchenguiz and others [2010] EWCA Civ 908 at [76] and [79].[12]Fox Williams were asked to provide details as to how and from where each and every document listed at A(i) (ii) and (iv) and C were obtained and details of how document B was obtained by M. Collyer Bristow required FJI to deliver up the documents at A to C in their possession or control together with any hard copies of other documents relating to the claimant’s divorce; and to undertake to delete all electronic copies of the documents referred to and to confirm in writing to Collyer Bristow that they had done so. Collyer Bristow made clear that their client would have no alternative but to take such legal steps as were appropriate to protect his rights in the event of failure to comply with these requirements.[13]Fox Williams responded by letter dated 20 November 2013 making it clear that FJI refused to deliver up the documents or give the undertakings referred to. They stated that all documents had been lawfully obtained. Documents at A (i) and (iv) were said to have been found in the course of an examination of the FJI computer system in accordance with its disclosure obligations, having been stored there by Ms Liebling, and any expectation of privacy she had was overridden by FJI’s obligation to carry out proper searches fulfilling its disclosure obligations in the employment tribunal proceedings. Documents A (ii) (iii) (v) and B were said to have been provided by M, as previously stated. Document C was stored on the Fulbright and Jaworski LLP server and disclosed accordingly.[14]Importantly, Fox Williams asserted that even if documents A (i), (ii) and (iv) were privileged in relation to the divorce proceedings between the claimant and M, they were not privileged for the purposes of the employment tribunal litigation. In any event they suggested that it was open to Miss Liebling to make an application to the tribunal in relation to the admissibility of the disputed documents. This was, they said, the proper forum to resolve admissibility issues and they expressed confidence that the importance of ensuring the proper administration of justice and their client’s article 6 rights would outweigh any article 8 privacy rights of Ms Liebling or the claimant.[15]Collyer Bristow replied on the same date, pointing out that Fox Williams letter did not address breaches by FJI of his legal advice, litigation, or without prejudice privilege and referring to the principle that once a communication is privileged, it is always privileged and such privilege persists for the benefit of the person whose privilege it is. Moreover, they stated, the claimant had not waived privilege in such documents and that breaches of such privilege could not be justified by reference to any duty of disclosure.[16]Mr Jones has criticised allegations of unlawful or criminal conduct made in this (and other) letters as baseless and unfounded. However, in circumstances where Fox Williams were saying that M had provided documents A (ii) and B, and these could only have come from the claimant’s password protected personal email account, this was a cause of serious and justifiable concern, and the allegations in relation to those particular documents were justifiably made. He also criticises an assertion in that letter by Collyer Bristow that:
“Both your and your client’s conduct in this respect is disgraceful”
. It is undoubtedly unfortunate that the correspondence between these professional solicitors betrays a lack of patience and courtesy at times, but perhaps understandable given the serious concerns raised and the apparent lack of appreciation displayed by Fox Williams in response to the concerns so raised.[17]In a further letter dated 29 November, Fox Williams sensibly proposed to focus on how the dispute could be resolved in a reasonable and proportionate manner, suggesting that Ms Liebling should make an application to the tribunal to rule on the admissibility of the Disputed Documents (which would be opposed on its merits by the defendants). Though they recognised that the tribunal had no power to make an order for delivery up of the documents, Fox Williams proposed that FJI would “reconsider its position in relation to delivery up and undertakings in light of the employment tribunal’s decision on admissibility”. In those circumstances it was suggested that it would be premature and misconceived for the claimant to make any application for delivery up to the High Court at that point.[18]Whilst making it clear that the claimant’s rights of privacy, confidence, privilege and any unlawful action on the part of the defendants in relation to the documents were the key issue, rather than any question whether the documents were admissible, Collyer Bristow accepted this proposal. They agreed to apply for a ruling on the issues raised, but making it clear that if the tribunal refused to determine the issues or did not consider it had jurisdiction to do so, the claimant would have no alternative but to seek injunctive relief together with costs in the High Court (letter of 6 December 2013).[19]Collyer Bristow duly applied by letter dated 10 December 2013 on behalf of the claimant and Ms Liebling, under rule 35 of the Employment Tribunal Procedure Rules for an order that the tribunal rule on the admissibility of the Disputed Documents in the tribunal proceedings, and explaining that they sought recovery of these documents which they said had been unlawfully obtained by FJI and opposing their admission in evidence.[20]The ‘admissibility’ hearing was listed for 14 January 2014 (together with applications for specific disclosure pursued by FJI against Ms Liebling and a witness order in respect of the claimant). Before that hearing could take place, there was a case management hearing in the tribunal on 18 December 2013 during which the defendants were asked by the employment judge why the claimant’s divorce was relevant to the employment tribunal proceedings. Following some discussion, Ms Liebling was invited to set out a chronology of her relationship with the claimant in order to avoid any need for reliance on the Disputed Documents or the need for the claimant to give evidence.[21]Consequently, by letter dated 3 January 2014 Ms Liebling set out the chronology of her relationship with the claimant (without prejudice to her case that it was a private matter, and not relevant to FJI), and having done so, sought confirmation that the Disputed Documents would be delivered up and/ or destroyed since they were no longer necessary.[22]Fox Williams responded by letter emailed on Friday, 10 January 2014, confirming that FJI “does not now consider that it needs to lead evidence on the above documents provided, of course, that Ms Liebling does not subsequently change her position regarding her account of her relationship with Mr Shepherd. Our client’s agreement not to rely on the disputed documents in no way reflects any acknowledgement of the allegations, but is consistent with the overriding objective… Our client therefore agrees that as soon as reasonably practicable it will return all hard copies of documents A to C retained by it to Mr Trafford [counsel for Ms Liebling] and that it will take reasonable steps to destroy any electronic copies it retains. We anticipate that this process will be completed by the end of next week. This is because although our client is ready to progress as fast as possible, Ms Ryan is currently in Australia……. Ms Ryan is best able to locate copy documents and to work with… IT in their destruction and can do so to the extent possible remotely but delivery up will require her to be in the office to locate physical copies. If your client insists this is done before he will withdraw his application and the parties will need to attend on Tuesday to explain themselves. We hope that a sensible and proportionate approach can be agreed and it seems unnecessary and indeed a waste of tribunal time and resources for delivery up to happen before the hearing can be vacated. .… This firm shall retain copies of the documents since we have referred to them in legal advice and are therefore required to keep these for our records, however we agree not to use the documents or provide copies……. This above is subject to Mark Trafford, counsel to Ms Liebling, retaining and agreeing not to destroy copies of all of the documents.”[23]Following this, Ms Chatterton of Fox Williams emailed Mr Trafford (also on 10 January 2014) confirming that Ms Ryan would deal with delivery up and/or destruction of the documents on her return and would progress this as quickly as possible, envisaging that the process would be completed on or before 17 January and stating:
“there is certainly no desire to retain the documents but if your client insists this is done before he confirms he withdraws his application the parties will need to attend [on] Tuesday to explain themselves”
. She made no mention of an undertaking required of Mr Trafford as a precondition to that delivery up and or destruction.[24]It is clear from the correspondence passing between the parties on 10 January 2014 that the claimant was, in effect, being invited to take Fox Williams’ word that the documents would be delivered up or destroyed by 17 January 2014, so that the hearing could be vacated in advance of this being done.[25]Collyer Bristow responded (email same date) requiring a solicitors’ undertaking from Fox Williams and on behalf of FJI, that they would before 17 January 2014 deliver up to Collyer Bristow all hard copies of the documents listed at A to C and any other documents relating to the claimant’s divorce; delete all electronic copies of these documents; and provide confirmation in writing that all of the above steps, had been completed in full. Collyer Bristow did not agree to Fox Williams retaining copies of the documents on its files but confirmed that they would retain such copies which they would produce on request by Fox Williams, FJI or any third party should this be required by law, the tribunal, insurers or regulatory bodies. They stated that although they had no objection to Mr Trafford holding these documents, they regarded it as more appropriate for Collyer Bristow to do so. They also required a number of confirmations in relation to the hearing on 14 January 2014.[26]Fox Williams responded by email of 10 January 2014 at 17.43 giving the requested confirmations in relation to the hearing on 14 January in order for the hearing to be vacated. So far as the request for undertakings was concerned they said:
“we will take instructions in relation to these. However, we do not consider that your request for these has any bearing on the hearing listed for 14 January [2014].”
[27]Although opaque, this paragraph suggests that the parties were still proceeding as though the basic premise was agreed – the admissibility hearing was to have been the vehicle for a reconsideration of delivery up of the Disputed Documents; the Disputed Documents were no longer to be relied on, so that their admissibility no longer required determination; the admissibility hearing could therefore be vacated and delivery up could be given. Indeed within two minutes of that email, at 17.45, Fox Williams emailed the employment tribunal asking for the hearing to be vacated, notwithstanding the outstanding points on undertakings and who would retain copies of the documents.[28]At 8.13am on Monday 13 January 2014, Collyer Bristow wrote to the employment tribunal stating that the claimant’s position was and remains that he withdraws his application on the terms set out in the letter from Collyer Bristow to Fox Williams dated 10 January 2014 – namely there would be delivery up of the documents listed at A to C and any other documents in the possession or control of FJI relating to his divorce, together with deletion of all electronic copies of these documents. Withdrawal of the application was conditional they said, on those terms, and they invited confirmation that there would be delivery up and destruction of the Disputed Documents.[29]The response from Fox Williams at 10.53 on 13 January 2014 although it failed to engage with the point made by Collyer Bristow that withdrawal of the application was conditional on delivery up of the disputed documents, which was after all the principal object and underlying purpose of the admissibility hearing, did not seek to resile from the commitment previously given that there would be delivery up and/or destruction on or before 17 January. Instead, having pointed out that the application related to admissibility, they simply stated that in light of Ms Liebling’s chronology dated 3 January 2014, they were not seeking to have the disputed documents admitted and on that basis the admissibility application was entirely pointless. Similarly, the email at 14.21 on 13 January 2014 from Paula Volkmer to Mr Robertson of Collyer Bristow, although it made clear that undertakings regarding the request for delivery up and destruction of the documents had not been and would not be given, did not suggest that there would be no delivery up or destruction as previously indicated (although a further email at 21.45 that evening from Fox Williams to Collyer Bristow confirmed that the hearing would not be going ahead but stated that there is “obviously no agreement” regarding the Disputed Documents).[30]The admissibility hearing on 14 January 2014 was accordingly vacated but the Disputed Documents were not subsequently delivered up and/or destroyed by 17 January 2014.[31]Thereafter Ms Liebling wrote both to Fox Williams and separately to the employment tribunal by emails dated 22 January 2014. These emails confirm her understanding that delivery up of documents which were the subject of the admissibility application, due to have been completed by 17 January 2014, was still awaited.[32]Paula Volkmer responded to Ms Liebling by email dated 23 January 2014 stating that she had misunderstood the correspondence in relation to the Disputed Documents and that the proposal made on 10 January 2014 was conditional on an undertaking being given by Mark Trafford and was in any event not agreed between the parties since Collyer Bristow had rejected their client’s proposed terms by requiring solicitor undertakings. In the circumstances it was Fox Williams’ position that “there was and is currently no agreement between the parties” but that they would consider a new proposal which did not involve the giving of undertakings.[33]On 27 and 28 January there were telephone discussions and emails between Mr Trafford and Ms Volkmer in which he offered an undertaking to retain all hard copies of the disputed documents delivered up by the defendants in a Chambers’ safe and on that basis invited the defendants to delete all other electronic copies. He expressed the hope that this simple proposal would achieve protection for the parties and circumvent the need for the parties to litigate the matter in the High Court. That was, it transpired, a vain hope as Ms Volkmer’s response (email 29 January at 16.39) made clear. She indicated that Fox Williams would not be in a position to discuss this proposal until the following week, suggesting that it would be premature to make any application to the High Court given that FJI had confirmed that it would not be leading on the documents in the proceedings, and repeated the previous position that Fox Williams had referred to the Disputed Documents in legal advice and were therefore required to keep these for their records and were not willing to delete such documents.[34]In these circumstances, by letter dated the 31 January 2014, Collyer Bristow asked Fox Williams if they had instructions to accept service in light of their failure to give delivery up. This request was met by a letter dated 3 February 2014 from Fox Williams to the effect that the documents in category A had been saved onto FJI’s computer systems in circumstances where Ms Liebling could have no expectation of privacy or were provided by M; and that although the documents would not be relied on in the tribunal proceedings or put in the trial bundle, this was subject to Ms Liebling not “changing her story again” so that delivery up and destruction was inappropriate whilst the tribunal proceedings were ongoing. Fox Williams stated that document C could not be delivered up much less destroyed. Fox Williams repeated that they were lawfully holding the Disputed Documents and would only agree to delivery up and/or destruction of documents in category A once the tribunal proceedings (and any enquiries from regulators) were complete. They agreed however to deliver up and destroy all forms of document B by 5 February 2014 in the interests of avoiding unnecessary satellite litigation.[35]Further correspondence followed but it is unnecessary to refer to it in any detail. It is sufficient to identify that in a letter dated 4 February 2014 Fox Williams disputed that they had reneged on any commitment to deliver up by 17 January 2014 in circumstances where no agreement had been reached between the parties as to the basis on which delivery up/destruction should take place. On 5 February 2014 Fox Williams delivered up hard copies of document B and confirmed that the defendants had deleted electronic copies to the extent possible, save where it would also mean deleting the email to which the document was attached; and that Fox Williams had made a file note of the contents of document B. Finally, there was a last ditch attempt on 5 February 2014 by Collyer Bristow to reach agreement on delivery up/destruction of category A documents (the category of principle concern to the Claimant) but by 7 February 2014 it was clear that agreement was unlikely to be reached.[36]The claim was accordingly issued by the claimant on 11 February 2014 under CPR Pt 8. He sought an order for delivery up and/or destruction of all the Disputed Documents against the defendants, together with, as far as possible, deletion of all electronic copies of those documents and an affidavit confirming compliance with those two orders on grounds that they are privileged, confidential, obtained unlawfully, in breach of confidence, in breach of the claimant’s rights under article 8.1 of the European Convention on Human Rights, in breach of the Data Protection Act 1998 or in breach of an agreement in writing dated 10 January 2014 to deliver up those documents to the claimant.[37]The defendants acknowledged service of the claim and contended (without prejudice to their objection to the Part 8 procedure being used) that all allegations raised by the claimant were disputed in their entirety. They relied on a witness statement of Thomas Custance dated 27 February 2014 in support of that denial and opposing the use of Part 8. In short, he disputes the claimant’s entitlement to assert privilege over any of the Disputed Documents on the grounds that they do not attract privilege at all; or if they do, that privilege did not belong to him, or that it had been waived. He also disputes that any claim for confidentiality of the documents overruled the defendants’ obligation to disclose the documents in tribunal proceedings and disputed all allegations of unlawful conduct. The waiver argument is set out at paragraph 35 of Thomas Custance’s statement as follows:
“he (the claimant) knowingly and deliberately sent the documents by email to FJI’s server. He would have known, or ought to have known, that there would be arrangements in place between FJI and their employees whereby FJI had a right of access to all communications to its employees with no expectation of privacy. These are … plainly fact sensitive issues.”
[38]This is the first time Fox Williams had raised any argument about waiver of privilege – until then, the only answer to the claim of privilege had been the suggestion that even if privileged in the divorce proceedings, the documents were not privileged in the employment proceedings.[39]A further application dated 4 March 2014, supported by the claimant’s second witness statement, was issued under CPR part 24, on the basis that the evidence advanced by the defendants showed no real prospect of defending his claim and there was no other reason why disposal of his claim should await trial. Importantly, at paragraph 5 of his witness statement the claimant makes the following clear (to the extent that this was not already clear):(i) Documents A (i),(ii) and (iv) are privileged and confidential. Given their highly confidential and sensitive nature, they are his main concern in the claim and application for summary judgement. (ii) Document A(iii) contains information which is confidential and statutorily protected from publication. (iii) Document B had been delivered up by both defendants on 5 February 2014 and no order is therefore necessary. Nevertheless it is relied on as evidence that both defendants accept that they had in their possession documents to which they are not entitled and had retained those documents without legal right or obligation to do so.(iv) Documents in C are confidential to the arbitration in which they were made and the parties to that arbitration and consequently neither defendant has any right to retain them.[40]He states that there is no factual dispute as to how the documents were obtained by the defendants explaining that he is not in a position to dispute that the Privileged Documents were retrieved from FJI’s server; nor that A (iii) and B were provided by M; nor that documents in C were provided to the defendants by the separate US entity, Fulbright and Jaworski LLP, which acted for one of the parties in the arbitration (paragraph 8).[41]However, in relation to the Privileged Documents, he states Ms Liebling had not to her knowledge stored them on the FJI server, and he had not sent any of those documents to either defendant, nor had he or Collyer Bristow sent them to Ms Liebling’s work email address (paragraph 9). Even had they done so, he asserts this could not have constituted a waiver of privilege in favour of FJI as a matter of fact or law. Finally, he disputes that “relevance” is a consideration in relation to privilege, but even if it is, the defendants had repeatedly confirmed that they would not be relying on the Privileged Documents in the employment tribunal proceedings; and Collyer Bristow/Counsel had undertaken to retain them in any event.[42]By letter dated 10 March 2014, under a heading “narrowing the issues in dispute”, Fox Williams (expressly making no concession as to relevance/admissibility of the Disputed Documents) indicated that since not all the documents would be necessary in any event because they go largely to the same issue, their client was prepared to deliver up and destroy the Privileged Documents (to the extent practicable) together with Fox Williams’ copies of those documents. They stated that they would confirm in a separate letter when the delivery up and destruction would take place, but that this should not be seen as any concession or acceptance that the claimant was entitled to delivery up. On the contrary they maintained that any privilege in the documents:
“was waived by the claimant by a) sending them to a third party, Ms Liebling and b) intentionally sending them to Ms Liebling at her work email address which was the property of another party, namely the client. …. the claimant knew or ought to have known that by sending the documents to Ms Liebling’s work email address, those documents would be stored on [FJI] systems and would be capable of being accessed by [FJI]. [He] also knew or ought to have known (particularly as he is a very experienced and senior lawyer) that there would be arrangements in place between [FJI] and its employees whereby [FJI] has a right of access to all communications sent or received by its employees and that its employees should have no expectation of privacy.”
[43]On 13 March 2014 three further witness statements were served by the defendants principally giving evidence as to the relevance of the Disputed Documents to the employment tribunal proceedings. Evidence was also for the first time provided to support the earlier statements that the Privileged Documents were stored on the FJI server as “temporary internet files” in a “hidden and secure outlook content folder” simply as a result of Ms Liebling opening or viewing the document. The evidence indicated that only two of the Privileged Documents had been “stored” by Ms Liebling on her work computer (para 35, Ms Ryan).[44]No further “separate letter” having been received by Collyer Bristow from Fox Williams, they wrote to Fox Williams (18 March 2014) indicating that provided proposals as to practicability of destruction and timing were acceptable, the claimant was willing to withdraw his claim and application for summary judgment on terms that there would be delivery up and/or destruction of all soft and hard copy Privileged Documents together with the making, swearing and service of an affidavit by Fox Williams and FJI confirming compliance. Collyer Bristow said in terms that the offer to deliver up, destroy and delete the Privileged Documents comprised the principal objective of the claim and application and in those circumstances, subject to questions of costs, the claimant did not consider that it would be proportionate to maintain the action solely for the purposes of obtaining relief in relation to the other Disputed Documents. So far as costs were concerned, they stated that they required their costs to be paid, subject to detailed assessment if not agreed.[45]Fox Williams responded by letter dated 24 March 2014 confirming that they would be delivering up and deleting the Privileged Documents but refusing to provide the affidavits requested. So far as costs were concerned they proposed a “drop hands” provided there was agreement before counsel’s fees were incurred. This proposal was rejected by Collyer Bristow (letter of 25 March 2014), insisting that the claimant was entitled to his costs and would proceed with the application unless agreement to pay them was reached.[46]Further witness statements on both sides were served thereafter, in particular concerning the question whether the claimant or Collyer Bristow sent documents to Ms Liebling at her work email address; and a second statement from Ms Ryan deals in detail with the way the Privileged Documents came to be stored on the FJI server, albeit recognising a “theoretical possibility” that this happened as a result of Ms Liebling forwarding emails from a personal email address to an address at work.[47]Finally, while continuing to dispute the claimant’s entitlement to delivery up/destruction of the Disputed Documents on any basis, Fox Williams confirmed (on 27 March 2014) delivery up/destruction of all the Privileged Documents (but so far as electronic copies were concerned, only to the extent possible, and in Fox Williams’ case, save where deleting the document would also mean deleting the email to which it was attached).

Applicable legal principles

[48]There is no longer any dispute that the claimant was entitled to assert privilege in respect of the Privileged Documents, and that the privilege was his. Legal professional privilege has been described as “more than an ordinary rule of evidence limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests”: see R v Derby Magistrates [1996] AC 487 (Lord Taylor of Gosforth CJ). Moreover, the rule is absolute and does not yield to any other policy consideration (even for example, the public interest in securing that all relevant evidence was made available to the defendants in criminal proceedings). That case established that no general exception is allowed to the absolute nature of legal professional privilege once established and for so long as it persists.[49]It is a precondition to a claim for privilege that the documents in question are confidential. Loss of confidentiality can accordingly equate to loss of privilege. There is no suggestion that the claimant agreed to waive privilege in the disputed documents in this case. The only basis on which he can be said to have waived privilege is accordingly on the premise that by sending them to Ms Liebling he destroyed any confidentiality in that material.[50]It is well established that a document which would otherwise be privileged does not lose the quality of confidentiality necessary to attract privilege simply because it has been seen by someone other than the lawyer and client. The critical question is whether the document and its information remain confidential in the sense that it is not properly available for use. If a document has been made generally available, confidence and therefore privilege will be completely lost. However documents communicated to a third party in circumstances expressly or impliedly preserving confidentiality against the rest of the world are unlikely to lead to the privilege being lost.[51]Whether a document is communicated in confidence depends on it having the “necessary quality of confidence” and being “imparted in circumstances importing an obligation of confidence”: see Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 (Megarry J). Communications concerned with an individual’s private life, including his personal finances and personal business dealings are plainly the stuff of personal confidentiality (and specifically covered by article 8): see Imerman v Tchenguiz and others [2010] EWCA Civ 908 at [76]. As for whether a document is communicated in circumstances importing an obligation of confidence, the starting point is the nature of the information communicated rather than the manner of the communication: BBGP Managing General Partner Ltd and others v Babcock & Brown Global Partners [2010] EWHC 2176 at [48].[52]The ultimate question here is therefore whether the claimant communicated the Privileged Documents to Ms Liebling in circumstances importing (whether expressly or impliedly) that she should treat them as confidential in which case privilege is maintained; or whether the documents were disclosed to her with no express or implied requirement that they should be treated as confidential, so that there has been a waiver, on a limited basis, of privilege.

Conclusions

[53]In their written argument, FJI’s case for limited waiver is put on the basis that “it is likely that the claimant sent the documents to Ms Liebling’s work email address”. If sent to her work email address, their case is the claimant would or should have known that employers such as FJI have policies in place (here, the “Electronic Information Policy”) which mean that their employees have no expectation of privacy in relation to documents or communications sent to their employer’s computer systems; accordingly, he would have known that the Privileged Documents would be available for inspection by FJI and that Ms Liebling would have no right of privacy as against her employer. It was argued that if A physically gives a privileged document to B and asks B to show the document to C, A cannot maintain privilege against B in respect of any dispute that B subsequently has with C in respect of which the document is relevant; and in effect that is the equivalent of what has happened here. In any event, they contend that the factual questions whether the claimant sent the documents to Ms Liebling’s work email address or had the asserted state of mind, cannot be resolved on a summary judgment application.[54]The short answer to this argument is that there is no evidence whatever to support the defendants’ assertion that the claimant or Collyer Bristow emailed the Privileged Documents to Ms Liebling at her work email address. The inference sought to be raised (in particular by Ms Ryan) that this is what happened by virtue of the fact that some of the documents have been copied in an outlook.content folder is directly contradicted by the evidence of the claimant, Collyer Bristow and importantly, Ms Liebling.[55]Ms Liebling states that the claimant sent the documents to her at her personal email address, and examples of the emails he sent are attached to her statement. On several occasions she forwarded emails from the claimant (sent to her personal email address) to her work email address in order for her to access those documents at work so that she could see comments or changes on the documents. She confirms that she was aware that the documents were privileged, highly confidential and contained sensitive personal data and that this was obvious by their very nature. She confirms having no recollection of ever deliberately storing any of the documents on her employer’s server, and that to the extent the documents were “stored” this must have been as a result of opening the documents or viewing the documents from her work email address having forwarded them from her personal account. She confirms that she was not aware of the existence of temporary internet files being created when a document is viewed or opened in this way and did not know that they would be stored on her employer’s server when viewed or opened in this way. Furthermore she confirms that there was no dispute between her and her employer either in existence or contemplation at the time she forwarded those documents from her personal email address to her work email address.[56]Accordingly, in the absence of any factual foundation for the assertion that the claimant sent the Privileged Documents to Ms Liebling’s work email address, there is no foundation in fact for the defendants’ written argument based on waiver.[57]In oral argument, Mr Jones developed a case that even if the documents were sent via Ms Liebling’s personal email address thereby finding their way onto the FJI server, if she was doing what she was authorised and requested to do, and doing so with the claimant’s knowledge, then the claimant would be aware of and taken to have consented to these documents finding their way onto the FJI server and to have waived privilege in those documents in respect of any issue arising between employer and employee to which the document is relevant.[58]I cannot accept Mr Jones’ argument, which is unsupported by authority or evidence. The Privileged Documents were generated in the course of a solicitor/client relationship. They are presumed confidential and the privilege that attaches to them is a fundamental substantive right. As a matter of law, Mr Jones’ proposition that by sending these documents to Ms Liebling’s personal email address, the claimant is to be treated as having waived his privilege in relation to her employer, goes too far. It is equivalent to an argument that if Ms Liebling accidentally left copies of the Privileged Documents on her office desk, and another employee or partner of FJI looked through papers on her desk and found them there, the claimant would be treated as having consented to this and to have waived his privilege in the documents. Neither argument can be sustained. It would be contrary to the interests of the administration of justice if privilege is regarded as waived in these circumstances or treated as waived generally because a privileged document is disclosed for a limited purpose by a party who plainly would not contemplate doing anything which might cause his privilege to be lost. The fact that the claimant might not be able to assert privilege against Ms Liebling does not mean that he is taken to have waived privilege more generally, or in relation to the defendants specifically.[59]Mr Jones submits that if his argument is not correct it leads to the surprising conclusion that in a situation where the employer is entitled to inspect the server and obtain a document kept by the employee on the employer’s server, the employer would nevertheless not be able to use it even if it is obviously relevant. I do not find this conclusion surprising. Once privilege is established and remains, it cannot be overridden by considerations of relevance, however powerful those considerations might be: see Derby Magistrates (above).[60]In any event, the evidence does not support his argument. The sensitivity of the documents must have been obvious to anyone receiving them. Given the relationship between them, and in light of their witness statements, it is inevitably to be inferred that the claimant would have expected Ms Liebling to be particularly sympathetic and sensitive to their confidentiality, and is unlikely to have been relaxed about any subsequent disclosure or use of them in a manner inconsistent with their sensitivity and confidentiality. There is no evidence that the claimant asked Ms Liebling to forward them to her work email or to copy them to her employer’s server; he merely asked her to review and comment on them. Ms Liebling was aware that the documents were privileged, highly confidential and contained sensitive personal data. She did not realise or appreciate that the documents would be stored on the server as a result of her actions. It is fanciful to suggest that the claimant knew that Ms Liebling would or that he would have expected her to forward them to FJI’s server. After all, he sent the emails to her personal address and not to her work address. There is certainly no basis for inferring that he authorised or requested this.[61]Nor am I persuaded that FJI’s electronic information policy helps in this regard. There is no evidence that the claimant had notice or knowledge of the policy relied on by FJI. He is not and has never been employed by FJI. Given the terms of the policy, it is not sufficient for the purposes of this argument for the defendants to assert that the policy is an industry standard and that everyone knows that employers have electronic information policies of this kind. The terms of the policy make clear that its purpose is to preserve privacy and confidentiality whilst enabling the employer to carry out legitimate monitoring and accessing of electronically stored material for appropriate business purposes. It is not obvious to me that a fair reading of the policy would have led the claimant to conclude that privilege and confidentiality in documents, sent to his girlfriend’s personal email but forwarded to her work email address for a limited purpose, would be invaded and jeopardised as a consequence. The fact that Ms Liebling personally might not be able to assert rights of privacy against FJI does not mean that the claimant cannot assert rights to confidentiality and privilege in respect of the Privileged Documents against FJI. Confidentiality is not lost simply because Ms Liebling forwarded the documents to her work email.[62]Given the highly confidential nature of the Privileged Documents, the limited purpose for which the documents were sent to her and the circumstances in which they were communicated by the claimant to Ms Liebling, which carried with it implied obligations of confidentiality, together with the other circumstances referred to above, there is no arguable basis for contending that there was a waiver by the claimant of his privilege in this material, notwithstanding that such material was found on the FJI computer system. Accordingly, both the action and the application so far as the Privileged Documents are concerned, are well founded in my judgment, and the claimant has not lost his right to delivery up of the Privileged Documents.[63]There are two additional matters on which the parties have not been able to agree:(i) there is uncertainty as to precisely what electronic copies have not been deleted, the reasons for that, and whether there is any need to obtain undertakings to restrict the use to which such copies may be put; and(ii) whether the defendants should swear affidavits explaining and confirming that they have delivered up and/or destroyed the Privileged Documents as they claim to have done. Given the history of this matter, and in particular the conduct of the defendants who appeared at a relatively early stage, to give a commitment (on which the claimant acted) to delivery up without fulfilling it thereafter, I am satisfied that it would be appropriate for them to swear affidavits explaining and confirming that they have delivered up and/or destroyed the Privileged Documents as they claim to have done. Moreover, I am also satisfied that there is a lack of clarity as to precisely what electronic copies have not been deleted and why and in those circumstances, it would be appropriate for the defendants to provide such clarification and the reasons why this has been done, together with appropriate undertakings to restrict the use to which any such copies may be put.[64]So far as costs are concerned, the claimant applied for delivery up of the Disputed Documents but made it clear at a relatively early stage, that his main concern was the Privileged Documents. He obtained the remedy he sought when those documents were delivered up. No arguable basis for any claim of waiver has been established, and I have found that he is entitled to the delivery up that has been given. He has succeeded and in my judgment, he is entitled to his costs of the action and this application.[65]I have considered whether some reduction in costs should be made to reflect the abandonment by him of his claim in respect of the remaining Disputed Documents, but have decided that no such reduction falls to be made in the circumstances of this case. I reach that conclusion by reference to a number of factors. First, I am satisfied that the concerns raised by the claimant originally in respect of those Disputed Documents were serious, justifiable concerns and that the defendants’ response to these concerns was inadequate. There was an inexplicable failure to engage by them. Secondly, the claimant made clear at a relatively early stage that his main concern related to the Privileged Documents and the costs consequences of this action flow from the failure to deliver up/destroy those documents. The claimant sought to avoid these proceedings, and to comply with approaches suggested by the defendants, but was ultimately forced by their intransigence to do so. Had the defendants honoured their commitment given in the clearest of terms on 10 January 2014, these proceedings would not have been necessary, and could have been avoided. Finally, I am not in any event persuaded that there were significant additional costs that can separately be attributed to the claim in respect of the Disputed Documents.[66]Accordingly, for the reasons given above, the claimant succeeds on the action and application, and is entitled to his costs. If the parties are unable to agree the terms of a consequential order, I will hear further submissions.

Cited in 2 later judgments