Legal advice privilege: Confidentiality is not lost until a “substantial number” of people have access

A Chancery judge has confirmed that confidentiality in legal advice is not lost through accidental disclosure to a relatively small number of people. As a result, the Mirror Group could maintain privilege over a note of legal advice that had fallen into the hands of a number of journalists and at least one investor. However, remarks made by the chairman of its parent company at a shareholders’ function were not privileged, even if they were addressed only to a small number of guests (Winstone & others v MGN Limited [2019] EWHC 265 (Ch)).

Background

A journalist, Mr Brown, was dismissed from employment in the Mirror Group in 2006 for writing up stories for publication in The People newspaper that belonged to the Daily Mirror. He alleged unfair dismissal on the basis that he had been treated more harshly than journalists who had been involved in the more serious misconduct of phone hacking, i.e. the intercepting of personal voicemails by journalists. The in-house lawyer dealing with the claim made a manuscript note on a copy of Mr Brown’s witness statement recording an assessment of the merits of the allegations. The claim was eventually settled. The note subsequently came into the hands of a Mirror Group shareholder and at least two journalists, in circumstances that remain unknown. At a reception held by the Mirror Group’s parent company after its 2015 AGM, the chairman had a conversation with one of the journalists about the date when the in-house lawyer first became aware of allegations of phone hacking, during which reference was made to the note. The conversation was recorded and transcribed.

The content of the note and the transcript became known to a group of alleged victims of phone hacking who were bringing an action for breach of privacy against the Mirror Group. The Mirror Group applied for an injunction to prevent the claimants from relying on this information on the grounds that it was privileged.

Decision on the note of legal advice

It was unclear whether the note reflected the views of the in-house lawyer himself or of the external lawyers who were also advising the Mirror Group. However, the parties were agreed that the note would be privileged in either event. The question was whether that privilege had been lost because the note ceased to be confidential when it came into the hands of the journalists and/or the investor. Confidentiality is a key ingredient in legal advice privilege because the purpose of the doctrine is to protect a party’s ability to consult freely with its legal advisers.

Norris J held that the note had not lost the quality of confidentiality. He referred to a statement by Sir Nicholas Browne-Wilkinson VC in Stephens v Avery [1988] 1 Ch 449 to the effect that confidentiality is only lost when information becomes known to “a substantial number of people”. The small number of people to whom the note had become known in the present case was not sufficient. Norris J therefore granted an injunction to prevent the claimants from relying on its contents and gave permission to the Mirror Group to redact references to the content of the note in its disclosure documents.

Decision on the transcript of comments made after the AGM

On the transcript, Norris J reached a different conclusion, holding that it lacked the necessary quality of confidentiality and could not be privileged. He categorised the reception as a public occasion at which the chairman could not reasonably have thought he was speaking confidentially. Although the transcript showed that he had asked for the conversation to be “off the record”, that simply meant that he intended it to be unattributable, not that he understood it to be private. Even if it had been confidential, Norris J indicated that he would not have exercised his discretion to make an injunction. The transcript had been open to public inspection on the court file for nearly six months before the Mirror Group raised any objection, and it was therefore too late for a claim of privilege to be asserted.

Comment

This case provides welcome confirmation that an inadvertent “leak” of a privileged document will not necessarily result in privilege being lost, provided the document is only seen by a relatively small number of people. However, parties who become aware that a privileged document has been filed at court should act promptly, as delay may result in the court refusing to exercise its discretion to prevent use of the contents.