Lachaux v Independent Print Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lady Justice Sharp,Lord Justice McFarlane |
| Judgment Date | 12 September 2017 |
| Neutral Citation | [2017] EWCA Civ 1334,[2017] EWCA Civ 1327 |
| Docket Number | Appeal Court Ref A2/2016/1450 and A2/2016/1451 Claim No HQ14D05024 & HQ15D00344,Case No: A2/2015/3720, A2/2015/3721, A2/2015/2723 and A/2015/2723(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 12 September 2017 |
[2017] EWCA Civ 1327
Lord Justice McFarlane
Lord Justice Davis
and
Lady Justice Sharp
Appeal Court Ref A2/2016/1450 and A2/2016/1451
Claim No. Hq14D05025
Claim No HQ14D05024 & HQ15D00344
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR MICHAEL TUGENDHAT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Adrienne Page QC and Godwin Busuttil (instructed by Taylor Hampton Solicitors) for the Claimant
David Price QC (instructed by David Price Solicitors and Advocates) for the Defendants
Hearing date: 1 December 2016
Approved Judgment
Introduction
The essential issue on this appeal, brought by leave granted by Laws LJ, is whether the defendants and their solicitors may retain and make use of information contained in documents which are said by the claimant to be confidential and the subject of legal professional privilege ("LPP").
On 18 December 2015 Sir Michael Tugendhat, sitting as a Judge of the High Court, ruled in favour of the claimant. He ordered that the documents be returned, that all copies be destroyed and that the defendants be restrained from disclosing or using any of the privileged information contained in them (subject to certain limited and specified exceptions). After a further hearing, various other provisions were included in the detailed order sealed on 15 March 2016.
Before us (as below) the defendants, who are the appellants, were represented by Mr David Price QC and the claimant by Miss Adrienne Page QC and Mr Godwin Busuttil.
The hearing before this court was held in public. However, because of the nature of the dispute it was (as below) necessary to ensure that the contents of the documents the subject of the dispute were not publicly revealed. An order in agreed terms, pursuant to s.11 of the Contempt of Court Act 1981, was made by this court at the outset of the appeal hearing on 1 December 2016. That order continues to apply. In this judgment I propose to adopt the approach of the judge in referring to the documents in question in only very general terms. This court has, however, very carefully considered for itself the contents of those documents.
Background facts
The background facts can, for present purposes, be but shortly recounted. Much fuller versions appear variously in other judgments of the courts relating to the libel proceedings brought by the claimant in the High Court against these defendants (and others) and to the matrimonial proceedings in the High Court between the claimant and his former wife ("Afsana").
The claimant is a French citizen, born in 1974. He is very highly qualified in the field of aeronautical and aerospace engineering. In 2004 he moved to Dubai, working for Panasonics Aviation Corporation. That employment ceased in 2011; latterly he has been an instructor and teacher at the Military College in Abu Dhabi.
The claimant met Afsana in 2008. She is a British citizen. They married in London on 26 February 2010. They lived together in Dubai. Their son, Louis, was born there on 4 April 2010.
The marriage very quickly fractured. On 2 May 2011 the claimant presented a divorce petition in Dubai. The relations between the parties became quite exceptionally acrimonious.
At all events, various articles thereafter appeared in various publications (both in print and online) in the United Kingdom. It is to be gathered that to a considerable extent these articles were based on information and allegations supplied to the media by Afsana — assisted, as is the claimant's belief, at least by her eldest son from a previous marriage. For present purposes, the relevant articles are those appearing online in the Independent newspaper on 24 January 2014 and in print in the Independent on 25 January 2014 and in print in its then sister paper "i" also on 25 January 2014. An article appeared (in print and online) in the Evening Standard newspaper on 10 February 2014.
On 2 December 2014 the claimant commenced libel proceedings in the High Court, founded on those articles, against the defendants. He claimed that the articles were very seriously defamatory of him.
A meaning hearing was held before Sir David Eady, sitting as a Judge of the High Court. On 11 March 2015 he issued his ruling as to each of these articles: [2015] EWHC 6230 (QB). It is not necessary to set out his conclusions in full. But they included, with regard to the Independent and i articles, the following:
i) the claimant had become violent towards Afsana, causing her to fear for her safety and go on the run with her child;
ii) without justification the claimant had snatched the child back from his mother's arms and never returned him;
iii) the claimant had falsely accused Afsana of kidnapping their son, a false charge which could result in her, unfairly and wrongly, spending time in a Dubai jail;
iv) the claimant had been content to use Emirati law and its law enforcement system, which discriminates against women, in order to deprive Afsana of custody of and access to their son Louis;
v) the claimant had been violent, abusive and controlling and caused Afsana to fear for her own safety;
vi) the claimant had obtained custody of Louis on a false basis and had initiated a prosecution of Afsana in the UAE founded upon a false allegation of abduction.
That sufficiently gives the flavour. Similar (albeit not identical) conclusions as to meaning were recorded with regard to the Evening Standard article.
Certain preliminary issues thereafter were directed to be heard. They came before Warby J, at a hearing at which the claimant gave oral evidence. The claimant was not cross-examined by these defendants. The decision of Warby J was given on 30 July 2015: [2015] EWHC 2242 (QB). There has since been an appeal by the defendants from that decision: which by decision of this court (handed down at the same time as this judgment) has been dismissed.
Various outstanding matters (including the question of costs) were adjourned by Warby J for further hearing. That hearing, and the judge's ruling thereon, took place on 21 October 2015: [2015] EWHC 3120 (QB).
The present dispute
On 17 July 2015 Afsana had herself issued proceedings in the High Court against the claimant and his solicitors in England, seeking return of confidential documents, primarily emails, which she alleged that the claimant had wrongfully and covertly taken from her (the claim has since been discontinued against the solicitors). The claimant put in a Defence in those proceedings dated 12 August 2015. Criticisms were made in that Defence of the formulation of the claim; and a lack of particularisation was also asserted.
Amongst other things, however, it was alleged in the Defence that each of the emails contained in what was called the Accessed Information (the information which was the subject of Afsana's claim) was accessible to the claimant on a computer in use by both him and Afsana in their marital home in Dubai. At paragraph 12 of the Defence this was further said:
"Under the laws of the UAE, in which the First Defendant was and still is resident and acting when he accessed the Accessed information, the First Defendant was entitled to access the Accessed Information, in particular because the law of the UAE does not recognise the possibility of secrets between a husband and wife; because the law of the UAE entitles any spouse to investigate physical and/or emotional infidelity of the other; and/or because the First Defendant was entitled to access all the Accessed Information and to present the same during litigation in Dubai to evidence the conduct of the Claimant during their marriage and to evidence her lack of competence as a child carer."
For the purpose of the preliminary issue hearing in the libel proceedings before Warby J, the claimant had put in a number of witness statements. One was made on 7 July 2015. In the course of it the claimant, in one of the paragraphs, made certain observations as to why he had commenced his divorce proceedings in Dubai.
On 7 October 2015, shortly before the renewed hearing before Warby J, the defendants' solicitors wrote to the claimant's solicitors. They annexed a document (one of those which are the subject of the present appeal), saying about it that "our clients have been provided with the attached document from Afsana. She states that it was retrieved from the hard drive of her computer in around the end of March 2011 by a computer technician in Dubai in the course of it being repaired ….". It was asserted that the contents of that document were irreconcilable with the identified passage of the witness statement of 7 July 2015.
Vigorous correspondence then ensued. Amongst other things, the defendants' solicitors refused to say when the relevant documentation first came into the defendants' possession. (It has since been accepted, however, that they had in fact received it around a year before referring to it in the letter of 7 October 2015.) The applications on behalf of the claimant seeking injunctive relief against the defendants in respect of this disputed documentation, including but not limited to the document attached to the letter of 7 October 2015, were issued on 6 November 2015. They were supported by a witness statement of the claimant of the same date (as to which there was to be no cross-examination).
The documentation in question essentially involved communications in January 2011 between the claimant and a French avocat based in Paris. It is sufficient for present purposes to say, as the judge said, that the documentation included...
To continue reading
Request your trial
-
David Haviland v The Andrew Lownie Literary Agency Ltd
...jurisdiction in respect of the statutory requirement for serious harm to reputation was considered by the Court of Appeal in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] QB 594 (CA) at [82(4)-(5)]. Davis LJ held that: i) the court should ordinarily be slow to direct a tria......
-
Levant v. Stirling,
...2017 ONSC 4450; Grant v. Torstar Corp.¸2009 SCC 61. [46] Levant v. DeMelle, 2022 ONCA 79; Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334 at para....
-
Driver v Radio New Zealand Ltd
...Act 2010, s 14(2). 8 At [33]. 9 Limitation Act 2010, s 3. 10 Sections 11(1) and 15. 11 Sections 11(2) and (3) and 15. 12 Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] QB 594 at [63], citing Lord Denning's statement in Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822......
-
Riad Tawfiq Al Sadik (AKA Riad Tawfiq Mahmood Al Sadek Aka Riad Tawfik Sadik) v Suhad Subhi Sadik
...At the hearing, the argument on Ground 2 proceeded on the basis of the Court of Appeal's decision in Lachaux v Independent Print Limited [2018] QB 594, and I was referred to a number of decisions interpreting and or summarising the principles set out by the Court of Appeal. As I have said, ......
-
Court Of Appeal Summaries (January 24-28, 2022)
...2008 SCC 40, Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, Blair v. Ford, 2021 ONCA 841, Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Platnick v. Bent, 2018 ONCA 687, Carter-Ruck on Libel and Slander, 5th ed.......
-
Court Of Appeal Summaries (January 24-28, 2022)
...2008 SCC 40, Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, Blair v. Ford, 2021 ONCA 841, Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Platnick v. Bent, 2018 ONCA 687, Carter-Ruck on Libel and Slander, 5th ed.......
-
COURT OF APPEAL SUMMARIES (JANUARY 24-28, 2022)
...2008 SCC 40, Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, Blair v. Ford, 2021 ONCA 841, Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Platnick v. Bent, 2018 ONCA 687, Carter-Ruck on Libel and Slander, 5th ed.......
-
BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (MARCH 25-29, 2019)
...Ltd et al (1987), 59 OR (2d) 104 (CA), Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, Lachaux v Independent Print Ltd, [2017] EWCA Civ 1334 Short Civil Decisions McDowell v. Fortress Real Capital Inc., 2019 ONCA 239 Keywords: Civil Procedure, Costs Miracle v. Maracle, 2019 ONCA......
-
Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia
...(n 49) [46], [47], [50].57. Lachaux HC (n 48) [56].58. Monroe (n 55) [74], [79].59. Ibid [56]–[62].60. Lachaux v Independent Print Ltd [2018] 2 WLR 387, [44], [73], [75], [82] (‘Lachaux CA’).The Court found on the factsthat serious harm had been established in respect of the publications. F......
-
Table of Cases
...2020 ONCA 71 ......97, 125, 131, 223, 235, 243, 249, 255, 259, 284–85, 293, 372, 395, 409, 475, 476 Lachaux v Independent Print Ltd, [2017] EWCA Civ 1334, [2018] 2 WLR 387, [2018] EMLR 1, [2018] QB 59 ..................................................................................... 246–......
-
Detailed Examination of the Factors
...lead testimonial evidence of the actual impact of a particular defamation upon reputation. [32] In Lachaux v. Independent Print Ltd. , [2017] EWCA Civ 1334, [2018] 2 W.L.R. 387, the England and Wales Court of Appeal dealt with a statutory provision intended to limit actions for defamation a......