Neutral Citation Number: [2009] EWHC 39 (QB)
Case No: HQ09X00032
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  16 January 2009 

Before :

THE HONOURABLE MR JUSTICE EADY
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Between :

	(1) PQR
(2) STU
	
Claimants	
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PRESSDRAM LIMITED	
Defendant	

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James Price QC (instructed by Carter-Ruck) for the Claimants
Heather Rogers QC and Anthony Hudson (instructed by Davenport Lyons) for the Defendant
Michael McLaren QC (instructed by Bevan Brittan LLP) for the Solicitors Regulation Authority

Hearing date:  13 January 2009
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Judgment

Mr Justice Eady : 

1.	On 13 January 2009 I heard an application in private by Mr James Price QC on behalf of PQR (“the Solicitor”) and STU (“the Firm”) for an injunction to restrain publication in the magazine Private Eye of information from what was described as a “confidential Opinion” dated 11 December 2008 from the Scottish Legal Complaints Commission (“SLCC”), sometimes referred to as the “Ombudsman”.  The Opinion concerned the processing by the Law Society, within this jurisdiction, of a complaint concerning the Claimants.  The involvement of the SLCC came about following a reference under the provisions of s.22(8) of the Courts and Legal Services Act 1990 (“CLSA”) for the reason that the equivalent Ombudsman in England happens to know the Solicitor.  The claim is put fairly and squarely on the basis of breach of confidence.  Defamation is not relied upon.
2.	There was already in place an order for anonymity of the Claimants and this has so far been maintained.  It was agreed that in the light of the judgment the questions of privacy and anonymity would, if appropriate, be revisited.
3.	The facts giving rise to the various complaints which have been made about the Solicitor and the Firm go back quite a long way and are fairly complex.  It is nonetheless necessary to attempt to summarise them so that the context of the present application can be properly understood.  There was litigation in Hong Kong in the early 1990s, in which two subsidiaries of the Exxon Corporation sued the complainant, a former lawyer within that jurisdiction, over allegations of breach of confidence by him in respect of information obtained when acting on their behalf in his professional capacity.  They had dispensed with his services and he was later suspended by the relevant professional body.
4.	The Solicitor and his Firm came into the matter in 1996 when they acted for the complainant, on a pro bono basis, for the purposes of an appeal to the Privy Council against a judgment of the Hong Kong Court of Appeal.  That appeal succeeded, as a result of which the matter was remitted to Hong Kong for reconsideration.  Although it is not relevant for present purposes, the reconsideration by the Court of Appeal led to a similar outcome as on the first occasion.
5.	The complaint against the Claimants was not made until late 2003.  It was based upon the fact that the Firm had merged at or around the time of the Privy Council appeal, as a result of which some work was taken on for Esso Petroleum UK, which is another subsidiary of the Exxon Corporation (as were the corporations which had sued the complainant in Hong Kong).  The work done in England for Esso Petroleum UK was carried out by a different partner.  In the light of this information, the question was raised whether or not the Solicitor should have declined to act for the complainant because of a potential conflict of interest.  Although it does not directly arise before me, emphasis has been placed by Mr Price on what he calls the “complete disconnection between parties and subject-matter”.  Because the matter may have to be re-considered by the Law Society in England, via the Solicitors Regulation Authority (“SRA”), the matter could well be re-argued de novo.
6.	If so, Mr Price has indicated that reliance would be placed upon the facts that the corporations which had sued the complainant in Hong Kong were completely different from that for which the Firm acted in England;  that the subject-matter of the two lawsuits was unconnected;  and that the work was handled by different partners within the Firm.
7.	It would be argued, therefore, that there was in fact no conflict of interest – even potential.
8.	In accordance with the procedure then applying, a Law Society Adjudication Panel concluded on 20 January 2005 that there had been a breach of Principle 15-01 (relating to potential conflicts of interest) and decided to reprimand the Solicitor in this respect.  This was an internal reprimand;  that is to say, it was not published generally at the time, but only to the parties concerned.  A few months later, on 21 July 2005, an Appeal Panel upheld the original conclusion.
9.	Mr Price has drawn attention to the fact that the SLCC Opinion of 11 December 2008, at paragraph 6.2, refers to the Adjudication Panel’s conclusion that there had been “little more than a technical breach”.  That is not a matter on which it would be appropriate for me to make any comment.  It may well be that the SRA, in the light of the SLCC’s recommendations, will investigate the original allegations afresh and re-evaluate the Solicitor’s conduct.
10.	There has been some dispute between the parties as to the extent of the relief claimed and it is appropriate, therefore, to identify, from Schedule 3 to the draft order, exactly what it is that the Claimants seek to restrain.  It is sought to prevent the magazine publishing certain matters referred to in the Opinion, namely:
“1.	The fact that the Law Society Adjudication Panel found that [the Solicitor] acted in breach of Law Society rules on conflict of interests, or the fact that it decided to sanction or reprimand [the Solicitor], or the basis of and reasons for such sanction or reprimand, and the fact that the Law Society Appeal Panel upheld the findings of the Adjudication Panel in respect of [the Solicitor].
2.		Any information or other matter which leads or may reasonably lead to the identification of [the Solicitor] or [the Firm] as the subjects of, or as being referred to in, the Opinion of the [SLCC] dated the 11th December 2008 following investigation of [the complainant’s] complaint into the way in which the Law Society Consumer Complaints Service handled a complaint by [the complainant] against [the Firm] and [the Solicitor] and [a second solicitor in the Firm].”
11.	So much for the background.  The problem which arises before me is the extent to which any of these matters can be regarded as truly confidential in the sense that there are any enforceable obligations to keep the information confidential on the part of the complainant and/or the publishers of Private Eye.  
12.	There is evidence from the Solicitor to the effect that, had the reprimand been regarded as other than “internal” or “private”, he would have sought judicial review of the Panel’s decision.  There is no reason to doubt his evidence that he chose not to do so because the disadvantage of judicial review proceedings taking place in public would outweigh the possible advantage.  He felt, in other words, that he could live with the reprimand (unjust though he conceived it to be) so long as it was not made public.  Obviously, as Ms Rogers QC points out on Private Eye’s behalf, that is not evidence which can affect the legal conclusion, one way or the other, as to the confidentiality of the material contained in either in the Panel adjudications or in the SLCC Opinion of December 2008.  Nevertheless, it tends to illustrate how the confusion surrounding this issue of confidentiality can lead to unfairness.
13.	A somewhat complicating factor in this case is that the procedure has now changed as a result of statutory intervention by means of the Legal Services Act 2007.  A survey was carried out to canvass opinion on whether or not findings should in future be published rather than regarded as “internal” or “private”.  The ultimate conclusion was that findings will now be published under the new procedure if the SRA considers it to be in the public interest to do so.  That clearly contemplates that there will be consideration of the issues, and a weighing up of competing interests, before a decision is taken to publish.  Furthermore, the adoption of a new procedure cannot affect the position with regard to any findings made under the earlier regime.
14.	I am grateful to counsel for taking me through a number of the statutory provisions, some of which I imagine have never been considered judicially before, but in the end I am not sure that the issues I have to decide can be determined by reference to the legislation.  I understand that Mr Price referred to them to demonstrate the background against which judgments should be made as to obligations of confidentiality and, in particular, to illustrate what view the court should take as to the requirements of public policy.  His primary thesis, as I understand it, is that it was the intention of Parliament that there should be confidentiality attaching to such matters as those in respect of which restraint is now sought, save in so far as specific provision is made to the contrary.  
15.	Particular reliance was placed, for example, on s.23 of the Courts and Legal Services Act 1990.  This contains provision for the Legal Services Ombudsman to send a written report of his conclusions to specified persons, and s.23(5) provides for protection by way of absolute privilege for certain publications.  
16.	Again, I was referred to s.44D of the Solicitors Act 1974.  (The section was inserted by s.177, Sch 16, Pt 1, paras 1, 46 of the Legal Services Act 2007.)
17.	Sub-sections (3) and (4) incorporate the provision that the Society (effectively the SRA) may publish details of action it has taken if it considers it to be in the public interest to do so, but it is important to note that where a decision to publish is taken the person in question must be notified in writing.  That is because it is contemplated that the decision itself could be appealed.
18.	Thus, Mr Price submits that the legislature would simply be “beating the air” if such protections could be circumvented by persons such as the complainant in this case simply providing the press with the information in respect of which Parliament was seeking to impose the restrictions.
19.	Although the statutory regime would appear to be striving towards protection by way of confidentiality for those involved in the process, save where it is thought by the SRA to be in the public interest to publish certain information, the outcome is confusing.  As I suggested in argument, it is as though there has been an attempt to block off one end of a tunnel while leaving the other completely open.
20.	It may be that there is, and that there is intended to be, an obligation of confidence owed by the supervisory or disciplinary body towards the parties involved in proceedings, but that will not be effective to keep the information confidential unless a corresponding obligation is imposed upon the parties to the complaints process (who are themselves entitled to know the relevant information).  The time to impose such an obligation, whether in equity or in contract, would be at the outset.  It seems to me that a complainant would need to know that if he chooses to take the disciplinary route he will pay the price of submitting to a duty of confidence.
21.	Without question, no such obligation was sought to be expressly imposed in this case and it does not appear to happen, either, as a matter of generality.  The evidence seems to show that at no stage was it brought home to the complainant that he had to treat the Panel adjudications (at first instance or on appeal) or the SLCC Opinion as confidential.  It is true that he has almost always in the past been given information in letters headed “Private and confidential”, but that would not in itself be enough to set up a legally enforceable duty on his part.
22.	Furthermore, it is important to have in mind that the Opinion of 11 December 2008 was forwarded to him without any requirement, or even request, that it should be treated in confidence.  It appears that he sent an email to the SLCC, stating that he hoped there would be no attempt to “gag” the contents of the Opinion.  In response, he received a letter from a Mr Irvine dated 16 December containing the following observations:
“As regards gagging of the Opinion, as the Opinion is now issued there is very little – if anything – anyone could do to gag the Opinion.  You are entitled to use it as you see fit and I am not aware of any limitations placed upon recipients as to how they might use the Opinion.  It is of course possible that the Law Society will refuse to accept the SLCC’s recommendations.  While that is not something we would hope for, it would then be up to the SLCC to consider publishing a Notice making public the Law Society’s refusal.  If the SLCC considered this appropriate the Notice would anonymise the parties to the complaint, but the background to the complaint would be set out as would the SLCC’s recommendations and the Law Society’s reasons for refusing to accept the recommendations. … ”
23.	Mr Price submits that Mr Irvine is simply wrong, as a matter of law, in his understanding as to the unrestricted use to which the Opinion might be put.  There is apparently some confusion, since it is difficult to see what point there would be in anonymising the parties to the complaint if the content was going to be freely available in any event.  Nevertheless, the letter presents a formidable obstacle to any submission to the effect that the complainant himself was, or had been placed, under any obligation of confidence whether in contract or in equity.
24.	In this context, reference is often made to the judgment of Megarry V-C in Coco v A N Clark (Engineers) Ltd [1969] RPC 41.  It is probably appropriate to ask whether the information in question has about it an inherent quality of confidence and/or whether it was imparted in circumstances making it clear that it was to be treated in confidence.  It seems to me counter-intuitive to suggest that either of these conditions could be fulfilled in circumstances where the Opinion was forwarded to the complainant without any reference to confidentiality and where, in response to his subsequent query, he was told, on the contrary, that he could make such use of it as he saw fit.
25.	As to earlier communications, it is quite clear that on a number of occasions the complainant was informed that the relevant body treated the information supplied to him as confidential, but several of the documents use a form of words to the effect that the sender would prefer that the information should not be disclosed.  That clearly does not purport to impose a legal obligation;  indeed, it gives the clear impression that there is no such enforceable duty but only a polite request.
26.	I quite accept that the result is confusing.  One of the consequences is to leave solicitors who are subject to an investigation in a state of uncertainty as to their legitimate expectations with regard to confidentiality.  As I have said, the Solicitor in this case chose not to challenge the Panel adjudications by way of judicial review for the very reason that he thought that this would lead to publicity against which he would otherwise be protected.  Had he appreciated at the time that he was vulnerable to publicity, at the choice of the complainant, he would have proceeded to apply for judicial review.  That is a situation of confusion and consequent unfairness.
27.	I must decide, primarily, whether there is a duty of confidence on either the complainant or the magazine publishers enforceable at the suit of the Claimants.  I conclude that there is not.  Accordingly, there is no likelihood of success at trial, as required by s.12(3) of the Human Rights Act 1998.  I therefore refuse the injunction.
28.	If there had been a duty, I would probably not have held that there was a public interest that the duty should be overridden.  That would appear to be the appropriate test to apply, in the light of the Court of Appeal’s judgment in Prince of Wales v Associated Newspapers Ltd [2008] Ch 57 at [67]-[68].  Naturally, I cannot give a definitive answer because I am dealing with a hypothesis only, in respect of which the extent of the supposed obligation has not been defined.  Nevertheless, it is difficult to see how it would be in the public interest (assuming an obligation of confidentiality) for it to be revealed either that the complainant had made a whole list of unsubstantiated allegations of impropriety against the Solicitor and the Firm (all rehearsed in the SLCC Opinion) or that a finding of a breach had been made three years ago when it would appear no longer to be valid and to require re-investigation.
29.	Furthermore, I am not satisfied that the test applied by Lord Goff in Att-Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282C-D, had been fulfilled so as to render the allegations in the public domain.  It could hardly be said that the information sought to be protected “ … is so generally accessible that, in all the circumstances, it cannot be regarded as confidential”. 
30.	There is evidence from the Solicitor that his health has suffered as a result of this long drawn out dispute and what he calls the complainant’s “campaign” against him.  While I am sympathetic to that, and recognise that further publicity for the allegations against him (which he denies) may lead to yet more stress and anxiety, nevertheless it is obvious that considerations of that kind would not in themselves justify granting relief which is otherwise inappropriate.
31.	It goes without saying that if the Defendant chooses to report allegations about either of the Claimants, and in particular any of the complainant’s unsubstantiated catalogue of improprieties, it may have to face a claim for libel.  All I am deciding is that there is no basis for interim relief on grounds of confidentiality.
32.	I will hear the parties further on the issues of privacy, anonymity and any interim protection with regard to the possibility of appeal.
33.	Finally, I should like to thank Mr McLaren QC for his attendance and for his skeleton, setting out the position and understanding of the SRA.