Serdar Mohammed v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 02 December 2013 |
| Neutral Citation | [2013] EWHC 4478 (QB) |
| Docket Number | Case No: HQ12X03367 |
| Court | Queen's Bench Division |
| Date | 02 December 2013 |
[2013] EWHC 4478 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: HQ12X03367
Richard Hermer QC, Ben JaffeyandNikolaus Grubeck (instructed by Leigh Day) for the claimant
James Eadie QC, Karen SteynandMarina Wheeler (instructed by Treasury Solicitors) for the defendant
Hearing date: 22 November 2013
Ruling No.2
An issue has arisen as to whether the defendant is entitled to redact certain information from documents disclosed in these proceedings on the ground that the information is subject to legal professional privilege. The claimant argues that the defendant has lost the right to do so in circumstances where copies of the documents without such redactions were disclosed, and in some cases referred to in open court, in earlier proceedings and the defendant has allowed the claimant's solicitors to inspect in these proceedings the unredacted versions of the documents
The earlier proceedings
The earlier proceedings were proceedings for judicial review brought on the application of Maya Evans. Her claim concerned the policy and practice of the UK in transferring to the Afghan authorities suspected insurgents detained by UK armed forces in Afghanistan. The defendant's policy at the time was that such detainees were to be transferred to the Afghan authorities within 96 hours or released but were not to be transferred where there was a real risk that they would suffer torture or serious mistreatment. The claimant did not dispute the legality of this policy, but contended that the practice of transferring detainees was unlawful on the ground that there was a real risk of torture or serious mistreatment if they were transferred to the Afghan authorities.
The hearing of the Maya Evans action took place in April 2010 and judgment was given in June 2010.
In the Maya Evans proceedings the defendant disclosed a large amount of documentation. The Divisional Court in its judgment given on 25 June 2010 described the disclosure exercise undertaken by the defendant as "massive, costly and time-consuming": see R (Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). As part of that exercise, information was redacted on grounds that it was (a) irrelevant, (b) protected by legal professional privilege and/or (c) the subject of public interest immunity.
The defendant has also emphasised that the disclosure exercise was carried out under considerable pressure of time and points out that a letter dated 9 November 2009 sent by the defendant's solicitors to the solicitors for Maya Evans in connection with the disclosure exercise contained the following statement:
"We do not waive legal professional privilege in relation to any legal advice which has been released to you as part of the disclosure process where the document was relevant to the issues in question.
In addition where documents which attract legal professional privilege have through inadvertence not been redacted, privilege is not waived in respect of those documents."
Subsequent disclosure of documents from the Maya Evans proceedings
Before the current action for damages was commenced, the present claimant brought proceedings for judicial review. In May 2012, the defendant's solicitors agreed that documents disclosed in the Maya Evans proceedings could be passed by the solicitors who acted for Maya Evans to the solicitors acting for the present claimant for use in his judicial review proceedings.
The claimant subsequently decided to discontinue his claim for judicial review and to pursue the present action for damages, which was commenced in August 2012. In a letter dated 25 February 2013, the defendant's solicitors agreed that the claimant's solicitors could inspect for the purposes of this action the documents disclosed by the defendant in the judicial review proceedings without prejudice to the question of whether those documents were indeed relevant to the matters in issue in the present action. Those documents included, by reason of the agreement in May 2012, the documents previously disclosed in the Maya Evans proceedings.
On 3 June 2013 the defendant's solicitors asked the claimant's solicitors to indicate which documents disclosed in the judicial review proceedings they considered relevant to the preliminary issues which had by then been ordered in the present action. The purpose of the request was said to be so that the redactions in any documents agreed to be relevant could be reviewed and public interest immunity claimed where necessary.
On 11 June 2013 the claimant's solicitors sent a list of such documents which included a number of documents originally disclosed in the Maya Evans proceedings. In further letters dated 8 October 2013 and 14 October 2013 the claimant's solicitors pressed for confirmation that the defendant was content for the claimant to rely on the versions of the documents which his solicitors already had in their possession. On 15 October 2013 the defendant's solicitors requested an explanation of the relevance of each document from the Maya Evans proceedings included in the list provided. Such an explanation was given on 17 October 2013.
On 7 November 2013 the defendant's solicitors wrote to say that they had now reviewed the documents disclosed in the Maya Evans proceedings included in the claimant's list and found that they contained some material which through error had not been redacted. This was said to include some material over which legal professional privilege should have been claimed.
On 20 November 2013 the defendant's solicitors provided copies of the documents said to contain such privileged information with that information now redacted.
The issue
The claimant does not dispute that the information which the defendant now seeks to redact is subject to legal professional privilege but argues that the right to assert such privilege has been waived. In the case of two documents it is also submitted that the right to claim privilege has been lost because the information has entered the public domain.
I heard argument on this issue (along with issues of public interest immunity) on 22 November 2013. However, because of the short notice at which the issue arose, I gave the claimant permission to file evidence and both parties permission to file further written submissions on 25 November 2013 and reserved my judgment on the issue.
The legal principles
The term 'waiver of privilege' is an imprecise one, which is capable of referring to at least five legally distinct ways in which a right to assert privilege may be lost:
i) What might be called a 'true' waiver occurs if one party either expressly consents to the use of privileged material by another party or chooses to disclose the information to the other party in circumstances which imply consent to its use. Such a waiver may be either general or limited in scope.
ii) Where a party waives privilege in the above sense by deliberately deploying material in court proceedings, the party also loses the right to assert privilege in relation to other material relating to the same subject matter: see e.g. Great Atlantic Insurance Co. v Home Insurance Co. [1981] 1 WLR 529. The underlying principle is one of fairness to prevent 'cherry picking': see e.g. Brennan v Sunderland City Council [2009] ICR 479, 483–4 at [16].
iii) Similarly, a party who by suing its legal advisor puts their confidential relationship in issue cannot claim privilege in relation to information relevant to the determination of that issue. Again the governing principle is one of fairness: see e.g. Paragon Finance v Freshfields [1999] 1 WLR 1183.
iv) Because privilege only protects information which is confidential, if the information concerned ceases to be confidential, privilege cannot be claimed. Where a party does an act which has the effect of making information public, this has sometimes been described as a waiver of privilege (see e.g. Goldstone v Williams (1899) 1 Ch 47), but it is more accurate to say that privilege cannot be claimed because confidentially has been lost.
v) Where a party comes into possession of privileged material by any means, and even if without the knowledge or consent of the other party, the receiving party is free to use such material subject to the equitable jurisdiction of the court to restrain a breach of confidence.
It is the last two of these principles which are relied on by the claimant in this case.
Loss of confidentiality
As mentioned, two of the documents now in issue were referred to in open court at the hearing of the Maya Evans case. The claimant submits that the documents thereby entered the public domain and lost their confidentiality.
The defendant disputes this. In a further note submitted after the oral argument, the defendant argues that confidentiality attaches to information and is not lost merely because reference is made in open court to a document which contains confidential information if the information itself is not made public.
I accept that information does not necessarily enter the public domain just because a document containing it is mentioned in open court, or even because the information itself is disclosed in open court. However, there are, as I see it, two routes by which in such circumstances the confidentiality of information may be lost.
First, sufficient publicity may be given to information disclosed in open court that it can no longer be regarded as confidential. This is a question of fact and degree. Frequently and no doubt typically, however, passing references to documents in open court do not attract sufficient publicity to cause them to lose their confidentiality in this...
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