Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
SIR MICHAEL TUGENDHAT
Between :
Bruno Lachaux | Claimant |
- and - | |
Independent Print Limited/ Evening Standard Ltd | Defendants |
Adrienne Page QC and Godwin Busuttil (instructed by Taylor Hampton Solicitors) for the Claimant
David Price QC of David Price Solicitors and Advocates for the Defendants
Hearing dates: 8th and 18th December 2015
Judgment
Sir Michael Tugendhat:
Sitting as a Judge of the High Court
By application notices in each of these libel actions the Claimant applies for an order for the delivery up of documents (‘the Documents’) which he claims are the subject of legal professional privilege (‘LPP’) but which have been obtained by the Defendants from his former wife, Ms Lachaux, in breach of what he alleges is a duty of confidentiality owed to him by her, and by the Defendants. He also seeks an injunction to restrain the Defendants from using the information in the Documents, in particular using it in these two libel actions.
In order not to defeat the purpose of these proceedings (as I would, if I were to disclose the contents of the Documents in this judgment), it is necessary that I refer to the Documents only in the most general terms, and that I refrain from including in this judgment anything that might enable a reader to infer what the contents of the Documents are. Having regard to the fact that the applications concerned information said to be confidential, I directed that the hearing be in private. For reasons that I gave in an ex tempore judgment at the start of the hearing, I was satisfied that it was necessary to make such an order, if the purpose of the proceedings was not to be defeated. I also acceded to a further application by Ms Page, namely that Mr Coad of Lewis Silkin, acting for AOL, and Ms Lachaux, who was present in person, should each be precluded from attending this hearing. I heard submissions from each of them before reaching this decision.
The main constituent of the Documents is a copy or draft of a letter which the Claimant sent in January 2011 to a French avocat practicing in Paris. That recorded some remarks of the French avocat which he said she had made to him in a telephone conversation. He also set out instructions on which he sought from her advice in respect of the breakdown of his marriage and the future arrangements to be made for the young child who had been born of their brief marriage (prematurely, on 4 April 2010). There is no dispute that the Documents were supplied to the Defendant by Ms Lachaux, and that they derived from a computer to which she obtained access (see para 11 below), nor that (subject to the issue of confidentiality) LPP originally attached to the Documents.
The issues are, broadly, as to whether the Documents were confidential as between the Claimant and his wife, whether she and the Defendants acted in breach of any duty of confidentiality, whether any duty of confidentiality that may originally have existed has survived subsequent disclosures by Ms Lachaux to third parties, and whether, if the Claimant succeeds on all those issues, the court should exercise its discretion to grant an injunction in the particular circumstances of this case.
It is not contended by the Defendants that, if LPP applied to the Documents, the Claimant has waived the privilege. It is not suggested that he himself has disclosed the Documents to anyone other than his own legal adviser, nor that he has consented to the use to which Ms Lachaux and the Defendants have put the Documents. Nor is it suggested that the Documents were created in furtherance of any fraud, or as part of any proposal to mislead any court.
The Claimant was born in 1974 in France. He is an aerospace engineer who has at all material times been working and living in Dubai. He met Ms Lachaux, then Ms Shukur, née Aman, in New Delhi in 2008. She was then, and is now resident in England. They made a pre-nuptial agreement in February, under French law, and married in February 2010 in Old Marylebone Town Hall, London. They lived together in Dubai. He commenced proceedings for divorce in Dubai on 2 May 2011. In due course the Dubai court pronounced that the marriage between the Claimant and Ms Lachaux was dissolved, and it awarded custody to the Claimant. The breakdown of their marriage can hardly have been accompanied by greater acrimony. It appears that one source of difficulty for the couple was that Ms Lachaux’s visa did not permit her to work in Dubai, and she made trips away from Dubai, during which the child remained in Dubai.
Two of these libel actions were commenced on 2 December 2014 and the third on 23 January 2015. They, and a related action against AOL, the publishers of the Huffington Post, have been the subject of a number of judgments of this court. On 11 March 2015 Sir David Eady handed down a judgment on the meaning of the words complained of in these two actions: [2015] EWHC 620 (QB). I adopt his description of the action, and set out his decision. The words complained of were published by The Independent on and from 24 January 2014, by The Evening Standard on and from 11 February 2014, and, in the case of the Huffington Post, from 20 January 2014. Sir David Eady found that the words complained of in these two actions bore the meanings attributed to them by the Claimant, and (subject to some qualification) the meanings in which the Defendants contended they were true (the Claimant does not complain of all of these). It is sufficient to set out the following passages from his judgment (in which Ms Lachaux is referred to as Afsana, and in which Rabbhi and Shabbir Yahiya are references to her adult sons by a previous marriage):
‘1. There are before the court two libel actions brought by a French national, Bruno Lachaux, against respectively Independent Print Ltd and Evening Standard Ltd. He complains of articles appearing in The Independent and the Evening Standard newspapers, both in hard copy and online, which are very similar in content and for present purposes can conveniently be considered together. The complaint relates to publication both in this jurisdiction and in Dubai…
I do not quite see where the phrase "cynically taken advantage" is to be found in the article. It is not suggested, for example, that he chose the Emirati system, from a number that were available to him, specifically to disadvantage Afsana. It is difficult to see from this article what other system of law was open to him, given where the persons concerned were living. There is, moreover, no express reference to "Sharia" in the Independent article. It may (or may not) be a matter of general knowledge, but if it is external to the article one might expect to see it brought in to support an innuendo – if this were necessary to establish a particular defamatory meaning. In my view, however, it is not. Nevertheless, the Defendant is entitled to plead (and in due course prove) simply that the Claimant was content to use a system of law which discriminates against women – since that is to be found in the article and does not need to be embroidered with rhetorical phrases like "cynically taken advantage"…
Subject to relatively minor points, my findings on the natural and ordinary meanings of the articles accord with those pleaded by the parties. In the interests of greater clarity, although at the risk of tedium, I shall set out the natural and ordinary (including inferential) meanings for each article as I have found them to be. There is inevitable duplication, since I am keeping as close to the wording of the parties as I can, and the Defendant's meanings are expressed in his pleader's own words, as I have explained….
The Evening Standard
The Claimant:
became violent and abusive towards his ex-wife Afsana within months of marrying her, beating her and leaving her with bruises on at least one occasion;
assaulted Afsana in public on custody visits relating to their young son;
attempted to snatch their son on one custody visit, leaving him with a badly bruised head;
callously and without justification snatched their son from out of his pushchair in the street (and has never returned him);
subjected Afsana to the injustice of facing jail in Dubai for "abducting" her own child, when in truth she had only fled with him to escape the Claimant's violent abuse;
having chosen to obtain a divorce in a Sharia court, also used Emirati law and its law enforcement system, which discriminate against women, in order to deprive Afsana of custody of and access to their son Louis;
hid the child's French passport and refused to allow him to be registered as a British citizen, as Afsana wished;
was violent, abusive and controlling and caused Afsana to fear for her own safety;
caused her passport to be confiscated thus for her to be trapped in the UAE;
threatened to report Rabbhi and Shabbir Yahiya to the police for aiding a kidnap if they came to Dubai;
caused Afsana to go on the run with Louis;
obtained custody on a false basis and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction, and which gave rise to the risk of a lengthy prison sentence there.
On 7 July 2015 the Claimant made his first witness statement to be adduced in the trial of preliminary issues. The main issues were whether the publications by the Defendants, and by AOL, of the words complained of, in this jurisdiction and Dubai, have caused or are likely to cause sufficient harm to the Claimant’s reputation to justify the bringing of these proceedings against each of these publishers. The issues arose under the Defamation Act 2013 s.1(1) and, in the case of AOL, the inherent jurisdiction of the court (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946). Warby J held that, with the exception of one article in the Huffington Post, the words complained of had caused serious harm to the Claimant, and that none of his complaints was an abuse of the process of the court.
On 17 July 2015 Ms Lachaux issued a Claim Form against the Claimant and his solicitors claiming the return of documents which she alleged he had taken from her, alleging misuse of private information and harassment (‘the Privacy Action’). Mr Price referred extensively to the Claimant’s Defence in those proceedings, dated 12 August 2015. Ms Lachaux’s claim has been discontinued as against the Claimant’s solicitors.
On 6 November 2015, in support of the applications now before the court, the Claimant made his third witness statement in these proceedings (the second had related to the trial before Warby J). Ms Lachaux made her first witness statement in the present proceedings on 27 November 2015. There were served witness statements of the same date by her son Rabbhi Yahiya and Mr Auckland, Group CEO of ESI Media. The Claimant has not replied to these three witness statements. Ms Page at first indicated that she would reluctantly seek an adjournment in order to enable him to do so. But on further consideration she did not ask for an adjournment. She decided to proceed on the footing, as she argued, that these witness statements did not raise any issue of fact which was material to the issues which I had to decide.
The Defendants first informed the Claimant that they had the Documents on 7 October 2015. They wrote that Ms Lachaux had provided them, and that (presumably according to her) they had been retrieved from the hard drive of her computer in around the end of March 2011 by a technician in Dubai whohad been asked to removemalware. (The Claimant denies that it was ever on Ms Lachaux’s computer, and contends that she, or one of her sons must have surreptitiously retrieved it from his computer).
In the letter of 7 October the Defendants explained their case on the relevance of the Documents. They wrote ‘It is impossible to reconcile the contents of the letter with [a statement that the Claimant had previously made in the course of these proceedings]’. They invited the Claimant to admit the truth of one of the meanings set out in a sub-paragraph of para 41 of the judgment of Sir David Eady (para 0 above), and in the corresponding paragraph 40, in relation to The Independent. In his Skeleton Argument Mr Price expressed the point more strongly. He writes that the Claimant has told ‘a blatant lie’ in his witness statement.
The Defendants have not acceded to requests by the Claimant’s solicitors on 9 October that they disclose when it was that they obtained the Documents from Ms Lachaux, or first learnt about their contents. On 12 October 2015 the Defendants’ solicitors suggested that the Claimant’s solicitors’ advice to him might be ‘affected by your financial interest in the litigation’, a suggestion of professional impropriety. On 16 October 2015 the Claimant’s solicitors wrote a detailed letter on why they refuted these allegations against their client and themselves. They concluded: ‘We do not consider that the contents of [the Documents], were they to be admissible (which they are not), would be capable of supporting either the assertions you have made… or your clients’ justification pleas; or any meaning defamatory of our client’. They also enclosed a copy of a judgment given in an action commenced in Paris by the Claimant against Ms Lachaux. The judgment was handed down on 14 October 2015 by the Tribunal de Grande Instance in Paris. The Claimant’s solicitors wrote that the Paris court had declared that the judgment of the Dubai court was enforceable in France.
The Claimant relies on the judgment of the Paris court to show that there was nothing in his Dubai proceedings which was contrary to French public policy. The Defendants have not commented upon the terms of this judgment.
Ms Page points to a passage in the witness statement dated 7 December 2015 made by Mr Coad (who had appeared for AOL with a view to objecting to any adjournment) in which he wrote that ‘AOL’s position differs from [the Defendants’] because it had neither seen, nor was it aware of the existence of the Documents prior to the trial before Warby J’. The implication, she submits, is that the Defendants had seen, or were aware of the information contained in, the Documents, in advance of the trial before Warby J (in which the point now taken would have been relevant), but that they had chosen not to adduce the Documents, nor disclose that they had the Documents or the information. That would invite an inference that at that time they recognised that the Documents did not assist their case, or that they were not conducting these proceedings with the candour that the rules of court now require.
The law
There are aspects of the law in this area which are complicated, as explained in the text books: Toulson & Phipps Confidentiality 3rd ed (2012) 18-001 to 18-010, Hollander Documentary Evidence 12th ed (2015) 25-01 to 25-06, 25-10 to 25-11, 25-16, Phipson on Evidence 18th ed (2013) 23-01, 26-51.
But I do not understand that I am being invited to differ from the statement of the law summarised by the Court of Appeal in Imerman v Tchenguiz [2010] EWCA Civ 908; [2011] Fam 116 at para [75] in which Lord Neuberger MR said:
“In ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch); [2003] 2 All ER 252, after a full and illuminating survey of the authorities, Lawrence Collins J held (para [74]) that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and "should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy ...", a view which he discussed in the ensuing paragraphs. On the facts of that case, he concluded (para [115]) that an injunction should be refused "on the ground of the public interest in the disclosure of wrongdoing and the proper administration of justice".”
The principles were summarised in Istil paras [88]-[94] as follows:
'88. What, then, is the extent of the discretion in the exercise of the Lord Ashburton v. Pape line of authorities to restrain breach of confidence in relation to documents which have already been disclosed, but which would otherwise be privileged? In particular, can the court conduct a balancing exercise, and if so, on the basis of what factors? In the light of the apparent difference of view between Nourse LJ in Goddard and Scott J in Webster, and the subsequent decisions in Derby v. Weldon (No. 8) and Pizzey v. Ford Motor Co. Ltd, in my judgment the position is as follows.
First, the starting point is that the essence of legal professional privilege is that it entitles the client to refuse to produce documents which are covered by the privilege, or to answer questions about privileged matters. But it has been said that once a privileged document is disclosed, the privilege itself is lost: see Guinness Peat Properties Ltd v. Fitzroy Robinson Partnership [1987] 1 WLR 1027, 1044, per Slade LJ accepting argument to this effect. In Black & Decker Inc v. Flymo Ltd [1991] 1 WLR 753 Hoffmann J said that once a privileged document was disclosed the question was one of admissibility, and not privilege.
Second, since the decisions from Lord Ashburton v. Pape to the modern decisions involve the equitable jurisdiction to grant injunctions to protect breach of confidence, it follows that the normal rules relating to the grant of equitable remedies apply. In Goddard Nourse LJ expressly mentioned (at 685) delay as a factor (and this was repeated by Slade LJ in Guinness Peat, at 1046). It must also follow that other equitable principles on the grant of injunctions apply, such as consideration of the conduct of the party seeking the injunction, including the clean hands principle.
Third, in such cases the court should "ordinarily" intervene: Guinness Peat at 1046.
Fourth, Nourse LJ was not saying in Goddard that the court should never apply the general principles relating to confidential information. What he was saying was that in this context (protection of privileged documents under the Lord Ashburton v. Pape principle) the court was not concerned with weighing the materiality of the document and the justice of admitting it. That was also the view of Vinelott J and Dillon LJ in Derby v. Weldon (No. 8) and of Mann LJ in Pizzey v. Ford Motor Co. Ltd.
Fifth, there is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. In this context, the emergence of the truth is not of itself a sufficient public interest. The reason why the balancing exercise is not appropriate is because the balance between privilege and truth has already been struck in favour of the former by the establishment of the rules concerning legal professional privilege: see The Aegis Blaze [1986] 1 Lloyd's Rep 203, 211; R v. Derby Magistrates Court, ex parte B [1996] AC 487, 508.
Sixth, other public interest factors may still apply. So there is no reason in principle why the court should not apply the rule that the court will not restrain publication of material in relation to misconduct of such a nature that it ought in the public interest to be disclosed to others: Initial Services Ltd v. Putterill [1968] 1 QB 396, 405 per Lord Denning MR, who quoted Wood V-C in Gartside v. Outram (1856) 26 LJ Ch 113, 114: "There is no confidence as to the disclosure of iniquity". But the defence of public interest is not limited to "iniquity": Lion Laboratories Ltd v. Evans [1985] 1 QB 526, applying Fraser v. Evans [1969] 1 QB 349, 362, where Lord Denning MR said that iniquity is merely an instance of just cause or excuse for breaking confidence. See also Attorney General v Guardian Newspapers (No.2)[1990] 1 AC 109, at 268-269, per Lord Griffiths; and Ashdown v. Telegraph Group Ltd [2002] Ch 149, approving Hyde Park Residence Ltd v. Yelland[2001] Ch 143, 172, per Mance LJ.
The difference between the parties’ legal submissions is in emphasis. Mr Price emphasises that, if the Documents or information are confidential (which he disputes), nevertheless the Claimant’s application ought to fail on discretionary grounds, as happened in Istil. He also cites Al Fayed & Ors v Commissioner of Police of the Metropolis Ors [2002] EWCA Civ 780 para [16] (ix) and (x) (‘there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances... Since the court is exercising an equitable jurisdiction, there are no rigid rules’).
Ms Page, on the other hand, emphasises the points on which Lawrence Collins J and other judges have distinguished the exercise of the court’s discretion in applications to restrain misuse of information subjected to LPP, from its exercise in applications to restrain breaches of confidence in other cases. In particular, she emphasises para [93] of Istil.
She cites a number of cases on the nature and importance of protecting LPP, even in cases where, if it were not protected, the issue of truth might be resolved differently. In particular, in R v Derby Magistrates Court, ex p. B [1995] UKHL 18; [1996] 1 AC 487 at 507G-H 508D-E. Lord Taylor CJ said:
’61. … legal professional privilege is a fundamental human right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms…
… it by no means follows that because a balancing exercise is called for in one class of case, it may also be allowed in another. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope. Putting it another way, if a balancing exercise was ever required in the case of legal professional privilege, it was performed once and for all in the 16th century, and since then has applied across the board in every case, irrespective of the client's individual merits’.
Lord Taylor was referring to the two sixteenth century cases he had cited (at 504A-D, paras [42] and [44]) namely Berd v. Lovelace (1577) Cary 62 and Dennis v. Codrington (1579) Cary 100. His was one of the earliest (of what is now a long line of) judgments in which judges have pointed out that English law has, since at latest the sixteenth century, recognised rights which are now called human rights (even if some notorious trials of the sixteenth and seventeenth centuries show how gravely those rights were regularly infringed by each of the Tudor and Stuart monarchs, and the Commonwealth, alike).
As Mr Price submits, there are, of course human rights to be taken into consideration in this case in addition to the rights of each party to a fair trial. There is the right to freedom of expression of the Defendants: their right will be interfered with if they lose, or are obliged to concede, the Claimant’s claim because they are precluded from relying on evidence which (as they say) would prove the truth of the words complained of. It has many times been said that a libel claimant should not be vindicated on a false basis. Ms Lachaux also has her rights to freedom of expression, and to respect for her private and family life. So, too, does Mr Lachaux have rights. Rights of his which are engaged are not just his right to his reputation, but also his right to respect for his correspondence, and the same aspects of his private and family life as apply also to Ms Lachaux. Also engaged is the Claimant’s right to freedom of expression (that is to communicate freely with his legal advisers, without fear of those communications being disclosed).
There has been little by way of submission or dispute on the law of confidentiality as it might apply to the Documents. Mr Price submits, as is not in dispute, that there may, in law, come a point where a confidential document, even one the subject of LPP, may have become so extensively accessible to the public at large that it loses any quality of confidence that it may have had. The issue between the parties on this point is whether I should find that to be the case on the evidence in this case.
Ms Page submits that there is no answer to the case that the Documents started as confidential and subject to LPP. In principle a written communication between a person seeking legal advice and a lawyer will, under English law, prima facie be a highly confidential document. The reasons are given in Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 649:
“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. ”
Mr Price did not contest this proposition, and I accept it.
The Defendants have not adduced evidence of the law which the Dubai court applied to the divorce and custody proceedings, or any law applied in Dubai on confidentiality in relation to communications between a lawyer and her client. They refer to the law applied in Dubai as Sharia law, by which they imply that it must be contrary to the public policy of England and France. Foreign law is normally proved by expert evidence, but neither party has adduced any expert evidence on foreign law. It may well be (I make no finding) that there are provisions of the law applied in Dubai which would be held to be contrary to public policy in England and France. But I do not accept that all provisions of Dubai law come within that category, or that it should be assumed that they do, absent evidence to the contrary. That would be contrary to the principles upon which English courts approach foreign laws (as they often have to do in cases relating to the jurisdiction of the court, extradition, and other matters).
Previous dissemination of the information
Mr Price’s first argument as to why the Documents are not the subject of any duty of confidentiality is based on the witness statement of Ms Lachaux. She states:
“I have been in contact with a large number of organisations to help me to regain contact with [their child]. The Claimant’s use of the discriminatory sharia raises issues of more general concern. These organisations asked me to provide them with relevant information and documents to verify and fact check my story… I cannot recall the precise list of people to whom I sent Documents 1 and/2 or told about it. From the best of my recollection it was sent to the Foreign and Commonwealth Office, the UN Rapporteur, media organisations, for example Private Eye and The Daily Mail, individual journalists, bloggers, legal experts (here, Dubai and France) and NGOs. The circumstances in which I lost custody of my son are now the subject of a UN examination based on evidence gathered by Redress and Human Rights Watch… For all the reasons set out above, I will continue to use and share the Documents. The Claimant has not applied to restrain me from using them and I would oppose any such application if he did.”
I express no view as to whether it would be lawful for Ms Lachaux to ‘continue to use and share the Documents’. She has not said to whom she intends to make any such disclosure, and the lawfulness, or otherwise, of any possible future disclosure by her is not an issue which I can determine in these proceedings.
Mr Price notes that her evidence is uncontradicted, and that Ms Page has not applied to cross-examine Ms Lachaux on her statement. I have in mind the requirement under the Human Rights Act 1998 s.12 that the court must have regard to the extent to which the material has, or is about to, become available to the public.
Ms Page submits that the statement is vague, identifying no individual to whom, nor date on which, she has disclosed, or intends to disclose, the Documents. She submits that this evidence falls far short of showing that any quality of confidence in the Documents has already been lost, or that the grant of the injunction the Claimant seeks would serve no further purpose.
I accept Ms Page’s submission.
The law applied by the Dubai court
Mr Price’s second argument as to why the Documents are not the subject of any duty of confidentiality is based on the law of Dubai. He advanced his submission that the Documents were not confidential under the law of Dubai by reference to what the Claimant had pleaded in his Defence to Ms Lachaux’s claim against him in the Privacy Action. He also referred to the Defendants’ Defences in these actions dated 23 January 2015. These Defences make some references to provisions of Dubai law, but in general terms only. The main body of the plea of justification relates to actions taken, or statements made (so it is alleged), by the Claimant. They do not identify any specific provisions of the law applied by the Dubai court upon which they allege that the Claimant has successfully relied to obtain an advantage over Ms Lachaux in Dubai which he would not have obtained in England or France. It is pleaded that these jurisdictions were available to him if he needed to seek access to their child.
The information which Ms Lachaux refers to in the Privacy Action is described generically as ‘private emails between the Claimant and third parties, private photographs of the Claimant and third parties, financial and social security data, Skype correspondence as well as telephone and other electronic records’. As Ms Page submits, there is no suggestion in the Particulars of Claim that any of this information was information exchanged between Ms Lachaux and a lawyer, or any information which might be the subject of LPP.
In his Defence, to which Mr Price referred, the Claimant admitted obtaining access to no more than information in four sets of communications in September and October 2010 between Ms Lachaux and a man in England, which he defined as ‘the Accessed Information’. He pleads that these provided evidence of infidelity on the part of Ms Lachaux. He pleads that he obtained access to this information from a computer in use by both of them in their marital home. There then follows the paragraph on which Mr Price places most reliance:
’12. Under the laws of the UAE, in which [he] was and still is resident and acting when he accessed the Accessed Information, [he] was entitled to access the Accessed Information, in particular because the law of the UAE does not recognize the possibility of secrets between a husband and wife; because the law of the UAE entitles any spouse to investigate physical and/or emotional infidelity of the other; and/or because [he] was entitled to access all the Accessed Information and to present the same during litigation in Dubai to evidence the conduct of [Ms Lachaux] during their marriage and to evidence her lack of competence as a child carer.
[He] first disseminated the Accessed Information to his lawyers in Dubai and in the divorce and custody proceedings in the Dubai courts on 15 December 2011, as he was lawfully entitled to do. [Ms Lachaux] made no complained in respect of that access and dissemination, recognising [his] entitlement to undertake it.
14. In the premises, none of the Accessed Information had or had any necessary quality of confidence about it, and [Ms Lachaux] does not and never had any reasonable expectation of privacy in respect of it’.
In her witness statement Ms Lachaux states that the divorce and custody proceedings in the Dubai court were conducted in a private hearing and their use in those proceedings did not result in their entering the public domain. No Reply has been served in the Privacy Action, and I have not been told that Ms Lachaux admits that the Claimant’s Defence is correct in so far as it states the relevant law of Dubai.
I can make no findings of fact in relation to the conflicting statements of fact or law made by the parties in the Privacy Action, and it is not necessary that I should do so. I accept Ms Page’s submission that the Defence pleaded by the Claimant in the Privacy Action cannot be evidence of whether or not, under Dubai law, a communication between a client and solicitor is protected by confidentiality, or any law corresponding to English LPP. His Defence says nothing about such a situation. It is not necessary to consider at this stage whether it would have made any difference to my conclusion if what is referred to as ‘the Accessed Information’ had included a communication from Ms Lachaux to a lawyer seeking advice.
The exercise of the court’s discretion
I consider first what the Documents show. As indicated at the start of this judgment, it would be impossible for me to set out my detailed reasoning on this topic in this judgment.
Mr Price has made detailed written and oral submissions in support of his case that the Documents cannot be reconciled with a passage in a witness statement of the Claimant, and that that passage is a ‘blatant lie’, accompanied with the threat that he will continue to advance in these actions a case which he knows to be false.
If I am to reach such a conclusion, it must be on the papers alone. There are circumstances in which such a conclusion can be reached on the papers alone, for example if there is an admission of lying. And the judge in Istil did reach a similar conclusion on the facts of that case. He held that ‘This is a case where there has on any view been forgery, and where there was a deliberate decision not to adduce evidence in a context which made the evidence which was being put forward misleading’: para [112]). But for a court to conclude on the papers alone, that the maker of a witness statement has lied to the court requires the court to be satisfied to a high standard that that is the fact. It is not often that the court can be so satisfied.
In the present case I am not satisfied that the Claimant either has lied, or is threatening to advance in these proceedings a factual case that he knows to be false. If Mr Price were to be permitted to adduce the Documents at the trial of these actions, I accept that there might well be questions that he could properly put in cross-examination of the Claimant, based on the Documents. But that is a long way short of my concluding that there is no answer that the Claimant could give to such questions other than to have to admit that he had lied. I do not know what answers to such questions the Claimant could give, and I also accept that there might well be answers which a court could accept, and hold that he had not lied. I make no suggestion as to what such answers might be, merely that on the information before me it appears a realistic possibility that there might be such answers.
But for the fact that the Documents are communications with a lawyer in which the Claimant was seeking advice, it may be that a point that would carry much weight would be the public interest in the emergence of the truth. That is a public interest that is commonly held to override what would otherwise be a duty of confidentiality. But in a case where the document is subject to LPP, the authorities discussed above are clear. Where LPP applies, that is not of itself a sufficient public interest. It is true that the cases referred to above are not defamation proceedings, and there is a principle specific to libel proceedings that there is a public interest in a libel claimant not receiving vindication on a false basis. But LPP is just as important in defamation proceedings (both to claimants and to defendants alike) as it is in any other proceedings. In my judgment, and subject to any other relevant factor, the fact that an ability to deploy the Documents might assist the emergence of truth in these libel proceedings is not a factor which I could, or should, take into account in deciding whether or not to grant the injunctions sought.
Mr Price submits that there are four further significant factors in this case which ought to lead to the court not exercising its discretion. The first is the need to avoid a false vindication, which I have already addressed. Second, is the rights of Ms Lachaux to respect for her private life, to which I have referred above. I accept that those rights of hers are engaged, and are relevant, even though she is not a party. But as explained above, there are corresponding rights of the Claimant. In the circumstances of the present case, I cannot accept that the undoubted interference in the rights of the Claimant which would be entailed if the Defendants were to be free to use the Documents is counter-balanced by any corresponding interference with Ms Lachaux’s rights that would be entailed by the grant of the injunctions sought.
The third factor Mr Price refers to is that it is inequitable, he submits, that the Defendants (and, through them, Ms Lachaux) should be precluded from using the Documents in these proceedings, given that the Claimant deployed confidential information of Ms Lachaux, as he did, in the Dubai proceedings for divorce and custody. However, as already discussed, I do not accept that the information which the Claimant deployed in those Dubai proceedings can be considered equivalent to the Documents. It is the distinction drawn in the authorities discussed above between cases where the duty of confidence relates to information protected by LPP, and other cases of confidence.
The fourth factor Mr Price refers to is that, so he submits, the Claimant has not been frank in what he has pleaded in his Defence to the Privacy Action. He contrasts what the Claimant has said in that Defence, with what he says in these libel actions about how he obtained her information. Again it would be wrong for me to speculate as to how the Claimant might give an explanation of any differences, if there be such. For present purposes it is sufficient that I decide, as I do, that I am not satisfied on the information before me that the Claimant has not been frank with the court.
In my judgment, none of these factors ought to lead to my exercising my discretion to refuse the relief sought on equitable grounds.
CONCLUSION
For these reasons I shall grant the injunctions, and, subject to any further submissions on the form of the order, such other of the relief sought in the Application Notices as may be just.
Following the circulation of this judgment in draft, Mr Price referred to English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605andrequested that I particularise in a private judgment the reasons for rejecting the Defendants’ written and oral submissions that the Documents show that the Claimant has told a blatant lie as referred to above. This is an interlocutory hearing, involving the exercise of a discretion, albeit that (subject to any decision of the Court of Appeal) it may be final on the issue of whether or not the Defendants are to be permitted to use the information in the Documents. In my judgment it is not in the interests of justice that, at this stage of these actions, I should give, even in a private judgment, reasons in addition to the reasons I have already given.