What needs to be disclosed during court proceedings?

Without prejudice privilege

In A&A Mechanical Contractors & Co Ltd v Petroleum Company of Trinidad and Tobago, the parties' contract contained a clause allowing for variations and alterations to the contract. The reasonable value of such alterations was then to be agreed between the parties, with the contract price being adjusted accordingly. The issue in this case was whether the negotiations to agree that value were protected by without prejudice privilege. One side argued that they were, because those negotiations were intended to settle the dispute between the parties about the correct value.

However, the Privy Council has held that they were not privileged and had to be disclosed in the proceedings. The clause in the contract envisaged an ongoing process to determine the value and that was different from the situation where parties seek to settle in contemplation of litigation: "There is no policy reason why the contractual process should be conducted on a without prejudice basis. Rather, if subsequently a court must determine whether there has been a variation and the value to be attributed to it, the court will be assisted by knowing the earlier positions adopted by the parties".

That said, the Privy Council did also recognise that it is possible to have two parallel processes: one an open contractual process and another a "without prejudice" negotiation where one side offers to settle the position being adopted in the open correspondence.

Litigation privilege

Litigation privilege was the privilege being claimed in Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities. In this case, the defendant sought disclosure of who within a company had been authorised to instruct solicitors in relation to litigation brought against it (because it suspected that two other companies were instructing the solicitors, and that could have been of relevance on the facts of the case).The Court of Appeal agreed that that information could be disclosed and it was not covered by litigation privilege – knowing who has instructed solicitors does not inhibit a litigant communicating freely with its solicitors (which is the rationale behind litigation privilege).

While, in a rare case, the name or job title of an individual might give away the content of any communications with lawyers (although the Court of Appeal doubted whether anyone really does have the job title "Head of Litigation Settlements"), in the vast majority of cases this information is not privileged. Furthermore, litigation privilege does not impose a "zone of privacy": it attaches to communications (including secondary evidence of such communications) but not to "information or facts divorced from such communications".

However, it was too wide to ask for the names of all individuals authorised to instruct solicitors here: identities can be disclosed as and when the need arises in relation to a particular document.

Loss of privilege

Where documents are undoubtedly privileged, but belong to an employee and are stored on the employer's servers, will privilege be lost? That was the issue that arose in Jinxin Inc v Aser Mediate Pte Ltd & Or.

The claimant in this case bought a majority shareholding in a company and alleged that it was fraudulently induced to buy those shares by employees of (and others connected with) that company. The company's staff handbook made it clear it reserved the right to monitor and access material on its servers "where necessary".

The claimant argued that as a result, data stored by the employees on the company's servers was not confidential and hence could not be privileged (confidentiality being an essential prerequisite for a claim to privilege). Accordingly, it was entitled to ask the company to pass it putatively privileged material that was stored on its servers, to assist the conduct of its dispute with the employees.

The judge rejected that argument, finding that the right to monitor did not give the company "completely free rein to do as it pleases with any private information that it may find".

Just as the judge saw "little attraction" in the idea that the company could have accessed and used privileged information stored on its servers in any employment dispute between itself and its employees, so he thought that the strong policy of the law in favour of legal privilege would prevent the company passing privileged material to a shareholder – even a majority shareholder.

This decision conflicts, though, with the decision in Simpkin v The Berkeley Group (2017), where the judge held that an employee had no reasonable expectation of privacy given the employer's IT policy (signed by the employee) which allowed the employer to monitor the employee's emails without consent. Accordingly, this point will need to be considered by the Court of Appeal (or Supreme Court) for clarity on the position.

Non-parties viewing court documents

Leaving aside disclosure of documents to the other side in a case, the ability for non-parties to access court documents (as is partially allowed under the Civil Procedure Rules) can be a very useful strategic tool. However, the non-parties will often not want the parties themselves (or anyone else) to know that they have done this. The issue in Hayden v Associated Newspapers Ltd was whether the parties can find out the identity of someone who has obtained a copy of court documents.

It was held that they cannot, since the rules do not allow for disclosure of that information. The requests are wholly unconnected to the litigation and there is no policy reason to allow anyone to see them. Furthermore, individuals only provide their names when making their request in order to allow the documents to be sent to them and not for any other purpose.