Author: Sophia Purkis
This article was first published by Solicitors Journal on 7 February 2017, and is reproduced by kind permission.
The recent case of Glenn demonstrates that while privilege and confidentiality may overlap, they are separate concepts.
Confidentiality of documents, information, and witness evidence may be the source of significant dispute between litigating parties. Disclosure of confidential information was recently considered in Glenn and another v Watson and others  EWHC 3259 (and associated claims).
In Glenn, the defendants sought an interim declaration under CPR 25.2(1)(b) that it was not a breach of confidence (or an inducement of such a breach) for them to obtain evidence and information about certain topics from a potential witness for use in the claims.
The witness was identified in the particulars of claim as having played a significant role in the matters of which the claimants complained. The parties agreed he owed duties of confidentiality to the claimants. The claimants did not intend to call him as a witness but the defendants wished to speak to him.
The parties had agreed specific topics about which the defendants could speak to the witness. The defendants wanted to add to them.
The parties agreed that while the court had jurisdiction to make the order sought, for it to do so the claimants would have to have waived confidentiality by reference to matters set out in their pleading.
The starting point was that where someone bound by confidentiality had relevant evidence to give, that witness could be called by either party and would be obliged at trial to answer relevant questions without breaching their duty of confidence: the duty to the court overrides that of confidence.
However, this does not mean the witness may reveal confidential information in breach of their obligations before trial, even if the party to whom the witness owes such duty has been compelled to disclose confidential documents (Porton Capital Technology Funds v 3M UK Holdings Ltd  EWHC 114 (Comm)).
Waiver of privilege
The defendants therefore sought to rely on authorities concerning waiver of privilege by pleading, submitting that the same principles applied to waiver of confidentiality.
The judge agreed that waiver of privilege could be express, collateral, and implied. The general principle is that mere mention of a privileged document in a pleading does not waive privilege in that document (Buttes Gas and Oil Co v Hammer (No 3)  QB 223).
However, relying on a document at trial would waive privilege. By pleading a document a party might demonstrate the intention to rely upon it at trial, and hence waive privilege. Thus, if a party by its pleading raises as an issue a privileged communication, subject to its right to amend to delete the same, it can be held to have waived privilege.
Such a waiver could extend to documents and information held by third parties (for example, a solicitor) not party to the claim. A similar principle had also been applied to ‘without prejudice’ negotiations in Property Alliance Group Ltd v Royal Bank of Scotland plc  EWHC 1557 (Ch).
Different practical effects
In considering whether the same principles applied to waiver of confidentiality in non-privileged communications, the judge returned to Porton. Disclosure of documents in Porton did not cause those documents to lose their confidential nature or prevent witnesses from being questioned on their content if relevant. Privilege and confidentiality, he said, have different practical effects.
Privilege permitted a party to object to inspection of a document; a party could not be obliged to answer questions on the content of privileged documents and it could object to other witnesses being questioned about it. The ‘immunities and protections’ afforded by privilege went beyond those of confidentiality. By waiving privilege the person ceded these special rights.
The judge then stated: ‘Confidentiality however does not work like that at all.’ A party to litigation cannot keep the content of a confidential document secret; it must allow disclosure or inspection of it, and if the party or anyone else gave evidence at trial they could be questioned about a confidential document or conversation.
A party does not lose all of its rights in a confidential document (or information) merely because of the other party’s obligations under CPR 31.22(1). The ratio in Porton directs that a potential witness owing a duty of confidentiality to the disclosing party is not free to talk to anybody and remains bound by that duty until giving evidence at trial.
While privilege and confidentiality may overlap, they are separate concepts. Confidentiality is not a reason to object to disclosure but it may prevent information being revealed on a matter until witness evidence is given at trial.
Sophia Purkis, Partner, Fladgate LLP (firstname.lastname@example.org)