Confidentiality and public interest collide

Posted: 2nd February 2018

SecurityCommunications between lawyers and their clients are confidential, but what happens when they fall into the hands of journalists who say that the public interest demands their publication?

The High Court is preparing to tackle that issue in a case in which documents were hacked from a law firm’s database. The firm, which has offices in overseas tax havens, took legal action against the BBC and the Guardian after information drawn from hacked documents formed the basis of a television documentary and newspaper articles concerning the ethics of the offshore finance industry.

The publishers were not alleged to have had any involvement in the hacking incident or even to know the hacker’s identity. However, there was no dispute that many of the documents that had been unlawfully removed related to advice in respect of financial and other matters given by the firm to its private and corporate clients and that they were thus covered by legal professional privilege.

On the basis that none of the documents gave grounds for suspicion that the firm or its clients had been engaged in unlawful activity, the firm accused the publishers of breach of confidence and sought damages and injunctive relief. The publishers, however, argued that they had acted in the public interest, in that the documents revealed widespread use by wealthy individuals and businesses of aggressive tax avoidance schemes and, in some instances, potential tax evasion.

The opposing contentions of the parties were revealed during a preliminary hearing at which the publishers argued that the case should be heard by a judge with specialist knowledge of media law. However, the Court found that the firm was entitled to choose to have the case listed before a business judge.