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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lachaux v Independent Print Ltd  EWCA Civ 1327 (12 September 2017)
Cite as:  EWCA Civ 1327
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR MICHAEL TUGENDHAT)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LADY JUSTICE SHARP
| BRUNO LACHAUX
|- and -
|INDEPENDENT PRINT LIMITED
for the Claimant
David Price QC (instructed by David Price Solicitors and Advocates) for the Defendants
Hearing date: 1 December 2016
Crown Copyright ©
Lord Justice Davis:
i) the claimant had become violent towards Afsana, causing her to fear for her safety and go on the run with her child;
ii) without justification the claimant had snatched the child back from his mother's arms and never returned him;
iii) the claimant had falsely accused Afsana of kidnapping their son, a false charge which could result in her, unfairly and wrongly, spending time in a Dubai jail;
iv) the claimant had been content to use Emirati law and its law enforcement system, which discriminates against women, in order to deprive Afsana of custody of and access to their son Louis;
v) the claimant had been violent, abusive and controlling and caused Afsana to fear for her own safety;
vi) the claimant had obtained custody of Louis on a false basis and had initiated a prosecution of Afsana in the UAE founded upon a false allegation of abduction.
That sufficiently gives the flavour. Similar (albeit not identical) conclusions as to meaning were recorded with regard to the Evening Standard article.
The present dispute
"Under the laws of the UAE, in which the First Defendant was and still is resident and acting when he accessed the Accessed information, the First Defendant was entitled to access the Accessed Information, in particular because the law of the UAE does not recognise 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 the First Defendant was entitled to access all the Accessed Information and to present the same during litigation in Dubai to evidence the conduct of the Claimant during their marriage and to evidence her lack of competence as a child carer."
i) that the documentation had been supplied to the defendants by Afsana;
ii) that the documentation derived from a computer in Dubai to which she had obtained access;
iii) that LPP originally attached to the documentation.
The judgment below
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
To like effect is the speech of Lord Lloyd, in particular at page 510 G-H. It thus was ruled that "no exception should be allowed to the absolute nature of legal professional privilege, once established" (page 508H).
"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…."
However, in the particular circumstances of that particular case the documents in question had (as was found) come into existence in furtherance of fraudulent conduct. As the judge found, "on any view" there had been a forgery and the forgery had been produced for the purposes of the litigation so as to defeat the ends of justice. Thus he declined to restrain use of the documents in question: see in particular paragraphs 112 and 115 of the judgment.
i) first, the documentation antedated the witness statement by over four years. It could not possibly, in contrast with the position in Istil, be said to have been created in furtherance of fraudulent conduct or deception of the court. That being so, it is then not enough (as the authorities make clear) simply to assert that the information contained in those documents would be important in helping to reveal what is asserted to be the truth;
ii) second, and in any event, my own reading of the documentation in fact leads me to precisely the same conclusion as that of the judge: it simply does not demonstrate that the claimant has been caught out in a lie. Indeed, if it were to be said to be so then it is also a point of comment that the defendants never themselves disclosed the documentation before the hearing before Warby J and never even attempted to deploy this documentation (which they by now had) in cross-examination at the hearing before Warby J;
iii) third, I would just observe that documents going solely to credit are not ordinarily disclosable in any event.
Lady Justice Sharp:
Lord Justice McFarlane: