Privilege not lost despite opponent obtaining copies of documents in foreign proceedings

The High Court has held that a defendant was entitled to maintain privilege over certain documents even though the claimants had obtained copies of the documents from a third party pursuant to subpoenas in Thailand: Suppipat v Siam Commercial Bank Public Company Ltd [2022] EWHC 381 (Comm).

The decision suggests that where a party has lawfully obtained documents in a foreign state which (as a matter of English law) are obviously privileged, that does not necessarily mean they will be available for use in litigation in England - particularly where the documents in question were obtained from a third party rather than the party entitled to assert the privilege and without notice to that party.

It is well established that, in determining whether privilege exists or has been lost, the English court will apply English law. The present decision suggests that the same is true for the question of whether or not a document remains confidential, where that question is being considered in the context of a claim that the document has lost confidentiality and is therefore no longer privileged.

The decision is also of interest for its discussion of how the courts will determine whether or not a document remains confidential for these purposes. It suggests that the question is not simply a matter of whether the document has entered the public domain - though if that has happened, it will be clear that privilege is lost. The question appears to come down to whether the document has been obtained in circumstances which import an obligation of confidence, meaning the document is not properly available for use. This will be the case where a party receives an obviously confidential document in error or through illegitimate means, but it is not limited to those situations. As the judge put it, whether confidence has been lost is a "contextual and factual" question.

Background

The 10th defendant (Siam Commercial Bank, or SCB) applied for an order prohibiting the claimants from using certain documents which the claimants had obtained from a third party (WEH) pursuant to subpoenas in Thailand. SCB submitted that the documents were subject to SCB's legal professional privilege and/or contained its confidential information, despite having been provided by SCB to WEH and produced by WEH to the claimants pursuant to the Thai subpoenas.

The claimants argued that the documents were no longer privileged as between themselves and SCB, including because the claimants had lawfully obtained them pursuant to the Thai subpoenas.

Decision

The High Court (HHJ Pelling QC sitting as a High Court judge) upheld the claim to privilege.

Which law applied?

There was no real dispute as to whether the documents were capable of being privileged (apart from certain emails, which was an issue that would have to be resolved separately). It was common ground that this question was to be determined by the law of the forum, ie English law (see for example Re RBS Rights Issue Litigation [2017] 1 WLR 1991, considered here). Applying that principle it was clear that the documents were capable of being privileged.

The judge rejected the claimants' argument that Thai law applied to the question of whether privilege in the documents had been lost when the claimants obtained the documents pursuant to the Thai subpoenas. Both Blair J's decision in Rochester Resources Ltd v Lebedev [2014] EWHC 2185 (Comm) (considered here) and the Court of Appeal's decision in Bourns Inc v Raychem Corp [1999] 3 All ER 154 (which Blair J applied) were authority that English law governs the effect of a loss of privilege in a foreign jurisdiction on the admissibility or disclosability of documents in litigation in England. It therefore did not matter that the Thai courts had apparently decided that the documents were not privileged.

Further, Bourns was authority for the proposition that, as a matter of English law, whether privilege has been lost is to be tested by asking whether the document and its information remain confidential. Blair J's formulation in Lebedev suggested that confidentiality would only be lost, under English law, if the material had entered into the public domain, but the judge in this case did not accept that a loss of confidentiality would be limited to that scenario. As Aldous LJ said in Bourns, the "crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use."

The judge rejected the claimants' further submission that the question of whether the documents remained confidential, for these purposes, was to be determined applying Thai law, by application of the Rome II Regulation on the law applicable to non-contractual obligations (which has been incorporated into UK law with minor amendments as "retained EU law"). This submission ignored the context in which the issue of whether the documents remained confidential arose - namely, a claim to legal professional privilege. The law of the forum is applied to questions of privilege because privilege is an aspect of English public policy. It would be "entirely artificial" if the existence of confidentiality, on which privilege depended, had to be tested by reference to another system of law. This would be likely to defeat the rationale for adopting the law of the forum as the applicable law for determining questions of privilege.

The judge therefore questioned whether it was necessary to consider Rome II at all, but if that was wrong then the judge pointed out that Article 26 of Rome II permits the court to refuse to apply the law specified by the Regulation if it is manifestly incompatible with the public policy of the forum. This would permit the English court to apply the law of the forum to issues of confidence where such issues arise in the context of whether privilege exists or has been lost.

Did the documents remain confidential?

There was no suggestion that the documents had entered the public domain, in the sense of being made generally available to the public (which, it was common ground, would have meant confidentiality was lost), and the judge rejected the suggestion that he should assume this would necessarily happen when the material was deployed in the Thai courts.

The judge accepted that, where one party to litigation has lawfully obtained a copy of a privileged document, the privilege does not itself prevent use of the document (see Calcraft v Guest [1898] 1 QB 759). It is only possible to prevent use by relying on the court's equitable jurisdiction to restrain a breach of confidence.

The real issue was whether the claimants owed SCB a duty of confidence which prohibited them from relying on the copies of the documents, despite having obtained them lawfully. In turn, this depended on whether the documents were received in circumstances importing an obligation of confidence.

The judge noted that most of the reported cases are concerned with privileged documents obtained in error or by illegitimate means, but he did not consider that those were the only categories of case in which equity would intervene. Lord Goff in Attorney General v Guardian Newspapers (No.2) [1990] AC 109 stated that a duty of confidence may arise whenever a person comes into possession of information known to be confidential, even if it was received innocently and outside the context of any relationship with the person concerned.

In the present case, SCB was not a party to the Thai proceedings and was not given prior notice of the application. The subpoenas were addressed to WEH and WEH was able to disclose the material only because it had received it from SCB in confidence.

In the circumstances, the judge concluded that the necessary confidence had not been lost simply because the claimants had obtained copies of the documents under the Thai subpoenas. Whether confidence has been lost is a contextual and factual question. He stated:

"In my judgment where the issue concerns the loss of privilege which is protected in England as a matter of public policy, a court should be very slow to conclude that the necessary level of confidence has been lost in circumstances such as this namely where an application has been made for disclosure to a foreign court in aid of other proceedings in that court against parties other than the party whose privilege is supposedly thereby lost and without prior notice to that party of the application."