Confidentiality and family proceedings
Confidentiality is a term which crops up frequently in family law – of family, especially children, proceedings; of the extent to which couples financial and other affairs are confidential one from the other; of the extent to which parties’ litigation is confidential from the press; and, of course, legal professional privilege. The operation of confidentiality was considered recently by Nicol J in Pharmagona Ltd v Taheri anor  EWHC 312 (QB) (17 February 2020). That was not in family proceedings, but Nicol J assessed his decision by reference to the important family case of Imerman v Tchenguiz and ors  EWCA Civ 908,  Fam 116,  2 FLR 814.
What is ‘confidentiality’? In the 1980’s ‘Spycatcher’ case (Att Gen v Guardian Newspapers Ltd (No 2)  UKHL 6,  1 AC 109 at 280 concerning release of government information received in the course of employment) Lord Goff said of confidentiality:
I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others…. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.
Not ‘to be definitive’, said Lord Goff; but his definition has been treated as authoritative (see eg Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell); and Privilege, Privacy and Confidentiality in Family Proceedings by David Burrows, Bloomsbury Professional Family Law (2019) https://www.bloomsburyprofessional.com/uk/privilege-privacy-and-confidentiality-in-family-proceedings-9781526507891/ Chapter 3).
The definition captures the three main components of ‘confidentiality’:
- That information comes to the knowledge of the confidant, who knows it is confidential (constructively or in fact).
- The situation is such that, where necessary, the confidant can be prevented from passing on confidences.
- There is a public interest in confidences being protected (if need be).
The confidential relationship
The classic confidential relationship often derives from the employee-employer relationship, where a condition of the employment is that employee does not pass on the employer’s private material. It exists in most husband-wife relationships said the Court of Appeal in Imerman v Tchenguiz (above). Confidences arise from particular relationships: such as doctor and patient; priest and penitent; banker and account-holder. And within confidentiality there is the special confidentiality (legal professional privilege) which exists between a lawyer (solicitor, barrister and patent agent) and that lawyer’s client in relation to information and advice in a ‘relevant legal context’ (Balabel v Air India  Ch 317, CA). Privilege – especially legal advice privilege (an aspect of legal professional privilege) – has been steadily in the law reports over the past few months (see eg https://law.bloomsburyprofessional.com/blog/bloomsbury-family-law-briefing-february-teaser-1 for a summary of recent cases).
Where confidentiality is, or may have been, breached a person can seek an injunction to prevent publication (ie further dissemination of information by the confidant or other person who has the information in question). That is what happened in Imerman v Tchenguiz. A question which then arises for the court, at an interim stage, is what criterion for preventing publication, does the court adopt?
Interim restraint of confidentiality injunction: Human Rights Act 1998, s 12
This was the issue in Pharmagona (above), and by reference to comments made by the Court of Appeal in Imerman. In Pharmagona Nicol J was dealing with an injunction to restrain former employees – a husband and wife who both worked for the claimant company – from using confidential information they had taken from the company. He granted an injunction to restrict use of the information. He would not order the defendants to deliver up or destroy the material they had taken nor did he prevent them from responding (ie they could not volunteer information) to public authorities if in their investigations they asked for information. Suspicions had been raised about the company following the defendants’ contact for example with the anti-terrorism unit of the police, the Civil Aviation Authority, HM Revenue and Customs and so on.
The case raised two important features:
- What was the criterion for grant of an interim injunction in a case such as this where the defendant’s freedom of expression – ie to use apparently confidential information – where this might be in issue?
- Did the public interest in publication (ie freedom of expression) override the public interest in the preservation of confidences?
Nicol J therefore asked himself: was the ‘balance of convenience’ test for an interim injunction from American Cyanamid v Ethicon  AC 396 appropriate in a case like this; or should the more ‘demanding test’ in Human Rights Act 1998, s 12 apply; namely, where freedom of expression is in issue, is the applicant ‘likely to establish that publication should not be allowed’ at any final hearing (s 12(3)). He held, after review of Imerman v Tchenguiz that it was the more demanding s 12(3) test. Publication – or freedom of the press in appropriate cases – would trump confidentiality.
Public interest and protection – or not – of confidentiality
Legal professional privilege is absolute (R v Derby Magistrates’ Court exp B  UKHL 18,  1 AC 487,  1 FLR 513): confidential advice etc can never be released save with the client’s consent. On the other hand, routine confidentiality leaves the person entitled to the confidence open to a public interest test. Should their confidence give way to a wider public interest?
Yes, a wider public interest might be engaged. For example, the safety of the public may override a confidence relationship (W v Egdell  EWCA Civ 13,  Ch 359,  2 WLR 471: confidential psychiatric report for a patient for parole board proceedings should be released to the Home Office). So too may the need for a fair trial (Lifely v Lifely  EWCA Civ 904: confidential diary produced by an opposing party on Court of Appeal decision to set aside a judge’s earlier order). And two Jehovah’s Witness elders were not allowed to claim confidentiality (in relation to their discussions with a parent). The best interests of a child trumped any confidentiality: they must give evidence in a care case (Lancashire County Council v E & F  EWHC 182 (Fam) (4 February 2020), Lieven J).