Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. But, it was accepted, there was no direct confidential relation between Pape and Lord Ashburton.
Held: Lord Ashburton was entitled to an injunction. Swinfen Eady LJ thought that an order could be made for delivery up of both originals and copies
Explaining Calcraft, Cozens-Hardy said: ‘The rule of evidence as explained in Calcraft v Guest merely amounts to this, that if a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means . . But that does not seem to me to have any bearing upon a case where the whole subject-matter of the action is the right to retain the originals or copies of certain documents which are privileged. It seems to me that . . there is no ground whatever in principle why we should decline to give the plaintiff the protection which in my view is his right as between him and Pape, and that there is no reason whatever why we should not say to Pape in pending or future proceedings, ‘You shall not produce these documents which you have acquired from the plaintiff surreptitiously, or from his solicitor, who plainly stood to him in a confidential relation.”
Swinfen Eady LJ said: ‘The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it. . . Then objection was raised in the present case by reason of the fact that it is said that Pape, who now has copies of the letters, might wish to give them in evidence in certain bankruptcy proceedings, and although the original letters are privileged from production he has possession of the copies and could give them as secondary evidence of the contents of the letters, and, therefore, ought not to be ordered either to give them up or to be restrained from divulging their contents. There is here a confusion between the right to restrain a person from divulging confidential information and the right to give secondary evidence of documents where the originals are privileged from production, if the party has such secondary evidence in his possession. . . The fact . . . that a document, whether original or copy, is admissible in evidence is no answer to the demand of the lawful owner for the delivery up of the document, and no answer to an application by the lawful owner of confidential information to restrain it from being published or copied.’
Sir Herbert Cozens-Hardy MR, Swinfen Eady LJ
 2 Ch 469
Cited – Morison v Moat 20-Aug-1851
A servant, Moat, sought to use a secret formula of his employer’s. The plaintiff requested an injunction to restrain use of the formula.
Held: The Vice Chancellor reiterated the principles, as to which he said there was ‘no doubt’, adding: . .
Cited – Morison v Moat 1852
Affirmed . .
Cited – Lamb v Evans CA 1893
The plaintiff printed and published a multi-lingual European trade directory, engaging the defendants as commission agents to solicit paid entries for the directory. The businessmen could, if they wished, supply wood blocks or other materials from . .
Explained – Calcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – ITC Film Distributors Ltd v Video Exchange Ltd ChD 1982
The defendant had got possession of his opponent’s papers, including certain privileged material, by a trick. A party to an action will not be allowed to use a document obtained by stealth or a trick. Warner J said, referrig to Ashburton v Pape: . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – English and American Insurance Co Ltd and Others v Herbert Smith ChD 1987
Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse. . .
Applied – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.270392