When does a confidential document cease to be confidential?

Published: 7/1/2020

Reference to a document in criminal proceedings does not cause a loss of confidentiality in the document itself for the purposes of civil proceedings. The case involving two groups of institutional investors bringing claims under Section 90A and Schedule 10A of the Financial Services and Markets Act against Tesco Plc continues to provide important clarification on a number of aspects of law.

Following on from our previous blog (here), the most recent interlocutory judgment, handed down on 3 December 2019, offers guidance as to the circumstances in which a confidential document ceases to be confidential.

Background

Following the most recent hearing in litigation described by the judge as "litigation on a grand scale", Mr Justice Hildyard considered, amongst various other applications, whether a specific document, having been referred to in open court in criminal proceedings, nonetheless retained its confidential status for the purposes of these (civil) proceedings.

One of the two groups of claimants, known as the "SL Claimants", made a number of specific disclosure applications to be heard at the fourth Case Management Conference in the civil proceedings, which was heard over three days in early November 2019. One of those applications sought inspection of a note of an interview between Ms Majid, a senior Tesco lawyer, and Freshfields, the lawyers acting on behalf of Tesco in the proceedings. This document became known as the "Majid Note", and records the accounts given by Ms Majid to Freshfields in relation to Tesco’s commercial income overstatements prior to 19 September 2014 (being the late day before Tesco issued a correction to its trading statement). The SL Claimants relied on the knowledge of Ms Majid in support of their case in relation to the knowledge that persons discharging managerial responsibilities at Tesco had at the material times. Unsurprisingly, Tesco asserted privilege in relation to the Majid Note.

It was common ground that the Majid Note had been provided by Tesco to the Serious Fraud Office, on the basis of it being a limited waiver of privilege. The Majid Note was then referred to in open court in criminal proceedings, being quoted in part and summarised (without quoting) what the note said in relation to certain matters. The judge, Sir John Royce, was invited to read various parts of the Majid Note too.

The SL Claimants contended that, as a consequence, the Majid Note had lost confidentiality and, as a result, could no longer be considered to be privileged. Tesco disagreed, and maintained that the Majid Note remained both confidential and privileged.

It had not been argued that the deployment of the Majid Note had constituted a waiver of the privilege in that document, and as a consequence, it was only the confidentiality status of the document that fell to be determined by the judge. The judge concluded that the question of whether or not confidentiality had been lost in the Majid Note was a question of degree.  The references to, and the judge’s reading of the Majid Note were not considered sufficient to waive confidentiality, and the judge did not consider that the disclosure of the document was necessary to enable the public to understand the approach of the criminal court in determining the issue before it in those proceedings.

In the circumstances, the judge concluded that confidentiality in the Majid Note had not been lost.

Comment

The case provides a useful reminder that whether or not a document has lost its confidentiality is a question of degree, and reference to a document in criminal proceedings will not necessarily mean that the document ought to be made available in other proceedings. The judge in those proceedings will, as here, be required to weigh up the circumstances in deciding whether confidentiality has been lost.

The case also provides brief consideration of the differences between criminal and civil proceedings, and a reminder of the fact that CPR 31.22 (the collateral use restriction on documents disclosed in civil proceedings), does not apply in a criminal context.

The full judgment of The Honourable Mr Justice Hildyard can be found here.

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