The High Court has refused to order a firm of solicitors to disclose a client’s contact details to assist in the enforcement of a committal order against him, because those details were protected by legal professional privilege and because disclosure would deprive the client of his right of access to legal advice: JSC BTA Bank v Ablyazov and others (Defendants) and Addleshaw Goddard LLP (Respondent)  EWHC 1252 (Comm).
This contrasts with the approach in JSC BTA Bank v Solodchenko (see post) where the High Court ordered disclosure of a client’s contact details in similar circumstances. In both cases the court recognised that there was a balance to be struck between the public interest in the enforcement of court orders and the public interest in ensuring that parties had access to legal advice. However, that balance was struck in opposite directions in the two cases.
In Ablyazov the court commented that there was at least one distinction between the two cases, namely that in Solodchenko the client had not appealed against the committal order and whatever advice he had needed had been given. There appears to be another distinction, which is that in Solodchenko there is no reference to any argument that the client’s contact details, though communicated to the solicitor in confidence for the purpose of enabling privileged lawyer/client communications, were themselves privileged.
The defendant, Mr A, had been sentenced to 22 months’ imprisonment for contempt of court. The claimant applied, ex parte, for an order that Mr A’s solicitors provide all contact details they had for him. The order was granted, relying on the decision in Solodchenko, and the solicitors complied with the order.
Some days later, however, the solicitors informed the claimant that they were in contact with Mr A by way of a conference call facility and an e-mail facility which they had set up in order that they could take instructions from Mr A and provide legal advice to him. The claimant then applied for a further order requiring the solicitors to provide details of, inter alia, the conference call and e-mail facilities.
The solicitors submitted evidence that if the court concluded that these details had to be provided, Mr A would cease to use such facilities for fear that the claimant would use them to track down his whereabouts or monitor his privileged communications. The claimant accepted that it wished to obtain the details to assist in tracking down Mr A’s location, but it had no intention to monitor the communications between Mr A and his solicitors.
The court (Teare J) held that it had jurisdiction to order disclosure if satisfied that it was just and convenient to do so in order to secure the effectiveness of the committal order. However, in this case it was not just and convenient to order disclosure (or, if it was, the order should not be made in the exercise of the court’s discretion) because:
- The contact details were protected by legal professional privilege, since they had been provided to Mr A by his solicitors in confidence to enable him to seek and receive legal advice.
- Further, it was not appropriate to make an order the foreseeable effect of which would be to deprive Mr A of his right of access to legal advice from his solicitors when he had need of it.
This decision is of interest both for the finding that a client’s contact details were privileged and for the court’s view as to where the balance lay between the competing public interests of enforcing court orders and ensuring that parties have access to legal advice.
On the first issue, Teare J considered previous decisions on the question of whether information provided by a client to his solicitor is protected by privilege, and concluded that the answer depends on whether the information was provided in confidence for the purposes of seeking and receiving legal advice. The decision does not seem to turn on the fact that in this case the conference call facility and e-mail facility were set up with a view to enabling the client to take legal advice, but rather that they were communicated for that purpose. If that reasoning is followed in other cases, and subject to any appeal, it seems unlikely that the court will order disclosure of a client’s contact details where those details were provided in confidence for the purposes of taking legal advice.
On the second issue, Teare J accepted that the court should do all it can to ensure the efficacy of the court’s orders, and said he was mindful of the observation of Henderson J in Solodchenko to the effect that it is liable to bring the administration of justice into disrepute if a contemnor is able to be a fugitive from justice while at the same time having solicitors on the record and intervening in proceedings as and when it suits him. However, Teare J said, a contemnor is as much entitled to the right of access to legal advice as a law abiding citizen, and ensuring that he has such right ought not to be regarded as bringing the administration of justice into disrepute. Accordingly, Teare J concluded that the balance should be struck in favour of ensuring that Mr A had access to his solicitors. It is not clear whether the judge’s conclusion on this point would have differed if, as in Solodchenko, Mr A was not in need of advice in relation to an appeal against the committal order.
Given the absolute nature of a claim to privilege under English law, it may be seen as surprising that Teare J saw the question of privilege as affecting whether it was “just and convenient” to make the order, and/or whether the order should be made in the exercise of the court’s discretion, rather than removing the court’s jurisdiction to order disclosure in the first place. However, he recognised that in determining these issues in a particular case, the court must take into account both the absolute nature of the right to confidential and privileged legal advice and the prior right to have access to such advice. He commented, “It may be that taking such matters into account will necessarily mean that the order sought will be refused where it requires disclosure of information protected by legal professional privilege or where its effect is to deny a person access to legal advice”.