An expert’s report prepared for the plaintiff was by mistake enclosed along with a letter to the defendant’s solicitors. When informed of the mistake the plaintiff’s solicitors sought its return with an undertaking to make no use of it. The plaintiff’s solicitors subsequently received a revised report which was more favourable to his position, which was disclosed to the defendant’s solicitors as being a report which would be relied on at trial.
Held: Once a privileged document or a copy came to the party, prima facie the benefit of the privilege was lost and the party who had obtained the document then had in his hands evidence which could be used at trial. However, if the privileged document was also confidential, it retained protection as such against unauthorised disclosure or use. Where protection of confidential information was sought the court was required to exercise its discretion by balancing the legitimate interests of the plaintiff in seeking to keep the confidential information suppressed and the legitimate interests of the defendant in seeking to make use of it. In that balancing exercise the circumstances in which the information came into the hands of the defendant, the issues in the action, the relevance of the document and whether it would in one way or another have to be disclosed, together with the privileged nature of the document, were all highly relevant.
In this case the conduct of the defendant’s case would be seriously embarrassed if the defendant was not able to make use of the report, since it had come into the possession of its solicitors without fault and since there would be no injustice to the plaintiff if the report were in evidence, together with the revised report, the plaintiff would be refused relief.
Scott J said: ‘Suppose a case where the privileged document has come into possession of the other side because of carelessness on the part of the party entitled to keep the document confidential and has been read by the other party, or by one of his legal advisers, without realizing that a mistake has been made. In such a case the future conduct of the litigation by the other party would often be inhibited or made difficult were he to be required to undertake to shut out from his mind the contents of the document. It seems to me that it would be thoroughly unfair that the carelessness of one party should be allowed to put the other party at a disadvantage.’ and
‘The law regarding confidential information is . . now relatively well settled. The court must, in each case where protection of confidential information is sought, balance on the one hand the legitimate interests of the plaintiff in seeking to keep the confidential information suppressed and on the other hand the legitimate interests of the defendant in seeking to make use of the information. There is never any question of an absolute right to have confidential information protected . . Whether the unauthorised use of confidential information or of confidential documents will be restrained is essentially discretionary and must . . be dependent on the particular circumstances of the particular case. The privileged nature of the document in question is bound to be a highly material factor but would not . . exclude from the scales other material factors.’
Scott J refused to follow Nourse LJ’s view in Goddard v. Nationwide Building Society [1987] QB 670, 685, that once it is established that confidentiality is established, there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. Scott J said that he did not think that statement represented the ratio of the case.
Judges:
Scott J
Citations:
[1989] 3 All ER 939
Citing:
Cited – 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.
Litigation Practice
Updated: 11 May 2022; Ref: scu.445849