ABSTRACT
The last-mentioned paragraph postulates alternatives, but I can only deal with the matter on this special case on one footing which must be that most favourable to the plaintiff, that is to say, ignoring the words ‘or not only’. The question for the opinion of the court, set out in paragraph 14, is ‘whether there is any equity to prevent the defendants from tendering a copy of the letter in evidence in any of the said criminal proceedings’. The plaintiff claims that the original of the letter is protected by legal professional privilege, and that therefore the copy is a confidential document, and I agree that if the premise be right the conclusion follows. Further, in my judgment it is right prima facie because, although the special case tells me nothing about the solicitor’s instructions, I must, as it seems to me, assume that the advice contained in the letter was given by her as legal adviser and within the ambit of her retainer, and indeed that is really implicit in paragraph 12 of the special case. It is submitted on behalf of the defendants, however, that as the plaintiff is charged with criminal offences, and the letter is relevant thereto, which it undoubtedly is, the privilege does not apply. Now, it is clear that a sufficient charge of crime or fraud will in certain circumstances destroy the privilege, but there is a dispute between the parties as to what it is necessary to show for that purpose. The defendants say that relevance is alone sufficient ... The plaintiff submits, however, that it is necessary to go further and to show that the professional advice was in furtherance of the crime or fraud ... or in preparation for it ... or parts of it ... As questions of this nature have to be determined on a prima facie basis, often without seeing the documents or knowing what was orally communicated, the two tests will, I think, in many and probably most cases be found in practice to produce the same result because in most cases of relevance the proper prima facie inference will be that the communication was made in preparation for or in furtherance or as part of the criminal or fraudulent purpose. However, the two tests are not the same and in the present case cannot, I think, possibly produce the same result. On the information before me the letter was nothing but a warning volunteered – no doubt wisely, but still volunteered – by the solicitor that if her client did not take care he might incur serious consequences, which she described. I cannot regard that on any showing as being in preparation for or in furtherance or as part of any criminal designs on the part of the plaintiff. I must, therefore, decide which test is correct, and I prefer the narrower view ... If relevance alone is the test, it follows that privilege could never be claimed in cases of crime or fraud, except as to communications in connection with the defence ... In my judgment, therefore, on the limited facts before me the original letter is privileged and the copy confidential ... It was then argued that the copy letter having left the care of the solicitor and come into the hands of the defendants, so that one is no longer in the realm of privilege but of confidence, there can be no equity which the plaintiff can set up because of the principle succinctly summed up by Wood VC in Gartside v Outram (1856), in the phrase, ‘there is no confidence as to the disclosure of iniquity’ ... In my judgment, however, that does not apply to the present case. At the trial the defendants may or may not prove the criminal offences with which the plaintiff is charged, and the letter, if received in evidence, may or may not help them to
do so, but although, if more were known of the facts, one might find some communication falling within this exception, I cannot see in this bare warning any element of vice which the umbrella of confidence may not in general cover. There remains, however, the final question whether the law or equity as to breach of confidence operates, in the terms of paragraph 14 of the special case, to give the plaintiff ‘any equity to prevent the defendants from tendering a copy of the letter in evidence in any of the said criminal proceedings’, where if tendered it would, as I see it, clearly be admissible: see Calcraft v Guest (1898), subject of course to the overriding discretion of the trial court to reject it if it thought its use unfair. The plaintiff relies on the decision of the Court of Appeal in Ashburton v Pape (1913), where a party to certain bankruptcy proceedings, having by a trick obtained a copy of a privileged letter, Neville J granted an injunction restraining him and his solicitors from publishing or making use of it, save for the purposes of those proceedings, and the Court of Appeal varied the order by striking out the exception, so that the injunction was unqualified ... In the present case there was no impropriety on the part of the defendants in the way in which they received the copy, but that, in my judgment, is irrelevant because an innocent recipient of information conveyed in breach of confidence is liable to be restrained. I wish to make it clear that there is no suggestion of any kind of moral obliquity on the part of the solicitors, but the disclosure was in law a breach of confidence. Nevertheless, Ashburton v Pape does differ from the present case in an important particular, namely, that the defendants are a department of the Crown and intend to use the copy letter in a public prosecution brought by them. As far as I am aware, there is no case directly in point on the question whether that is merely an immaterial difference of fact or a valid distinction, but in my judgment it is the latter because in such a case there are two conflicting principles, the private right of the individual and the interest of the state to apprehend and prosecute criminals ... In my judgment it would not be a right or permissible exercise of the equitable jurisdiction in confidence to make a declaration at the suit of the accused in a public prosecution in effect restraining the Crown from adducing admissible evidence relevant to the crime with which he is charged. It is not necessary for me to decide whether the same result would obtain in the case of a private prosecution, and I expressly leave that point open. My reasons for the conclusion I have reached are as follows: First, it is clear that if the copy letter were in the hands of a third party I would in restraining him have to except the power of the trial court to subpoena him to produce the letter and his obligation to comply with that order: see per Bankes LJ in Weld-Blundell v Stephens (1919). It would be strange if the defendants could subpoena a witness to produce this document yet, having it themselves, not be allowed to tender it in evidence. Secondly, and even more compelling, is the effect of the conflict between the two principles to which I have already referred. In Elias v Pasmore (1934) it was held accordingly by Horridge J that the police were justified in retaining and using at the trial of Hannington documents belonging to Elias which they had seized irregularly when entering the premises to arrest Hannington. True it is that in Ghani v Jones (1970), Lord Denning MR criticised the dictum of Horridge J as being too wide in that he gave the police the right to use the documents in the trial of any person, but with that qualification Lord Denning accepted what Horridge J had said. Thus Elias v Pasmore is authority for
the proposition that the right and the duty of the police to prosecute offenders prevails over the accused’s right of ownership. He cannot demand his own goods back. By analogy it seems to me that the interest and duty of the defendants as a department of the state to prosecute offenders under the Companies Act must prevail over the offender’s limited proprietary right in equity to restrain a breach of confidence, and here, of course, the doubt suggested by Lord Denning does not arise because the accused and the person entitled to the benefit of the confidence are one and the same ... For these reasons, in my judgment, the answer to the question propounded in paragraph 14 of the special case is in the negative and the action must be dismissed ...4
