The claimant sought discovery of documents from the solicitors for a defendant said to be in contempt of court.
Held: The disclosure was required to support an existing finding of contempt and in enforcing the order for committal. Henderson J said that in the absence of such an order the disclosure order would not have been made. He was concerned that all reasonable efforts should be made to ensure that the relevant contemnor, Mr Shalabayev, was apprehended and that he could begin to serve the sentence of imprisonment imposed upon him. He added: ‘Whatever advice he needed for the purposes of the committal proceedings has already been given, and he has not appealed against the committal order. The right of Mr Shalabayev to seek and obtain privileged legal advice from [his solicitors] is not in issue. What he cannot reasonably do, in my judgment, is to keep a confidential line of communication with [them] open for that purpose, while at the same time expecting his contact details to be withheld from those charged with enforcement of the committal order.’
As to the order for disclosure by the solicitors, Henderson J examined the authorities, adding: ‘In my view these cases . . do provide valuable illustrations of the reasons why the appropriate course will normally be to refuse such an application where the address was provided to the solicitor in confidence for the purposes of obtaining legal advice.’ and, more generally: ‘. . In the first place, I feel no real doubt that the court has jurisdiction to make the order sought. I base that conclusion both on the [A J Bekhor and Co Ltd v Bilton [1981] 1 QB 923] line of authority and on the power of the High Court to give directions to solicitors as officers of the court. It is unnecessary for me to consider whether jurisdiction could also be founded on the Norwich Pharmacal line of cases, and I prefer to leave that question open. Secondly, I consider that the court must be alert not to make any order which might inhibit the fundamental right of Mr Shalabayev to seek and obtain legal advice from [his solicitors]. Thirdly, the court should as far as possible respect the express condition of confidentiality subject to which Mr Shalabayev has provided his contact details to [his solicitors], while noting that the only reason for this . . is the fears that Mr Shalabayev says he has for the safety of himself and his family. Fourthly, there is a clear distinction in modern English law (although there was not at the date of the Victorian authorities which I have examined) between a client’s right to claim legal professional privilege, which is absolute, and the right to protection of confidential information, which is capable of being overridden by other considerations, not least in the context of disclosure under the CPR (and previously the Rules of the Supreme Court) where it is well established that confidentiality does not of itself justify non-disclosure of a relevant document or information. Fifthly, there is a strong public interest in ensuring obedience to court orders generally, and in not allowing the court to be baffled by the complexities of international fraud cases and opaque asset-holding structures. Sixthly, the public interest which I have just mentioned applies with particular force to enforcement of the committal order against Mr Shalabayev, because part of the purpose of committing a contemnor to prison is to encourage belated compliance by him with the court orders which have been flouted.’
Judges:
Henderson J
Citations:
[2011] EWHC 2163 (Ch), [2013] Ch 1, [2012] 3 WLR 559, [2011] CP Rep 46, [2012] 1 All ER 735
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) QBD 10-Jul-2014
The claimant sought an order for the disclosure by his solicitor of the identity of the author of an internet blog publishing critical material which, the claimant said, was its confidential information. The defendant’s solicitor had failed to . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court, Legal Professions
Updated: 17 September 2022; Ref: scu.442582