I don't think the outcome of the case is as straightforward as Rob suggests. Accepting that there is no claim right here, we are still left with the question: a privilege against what?
The traditional view that privilege is an immunity only against compulsory disclosure was implicitly rejected by the High Court in Expense Reduction, where the Court accepted that privilege continued to exist in (inadvertently) disclosed documents because the privilege had not been waived, and it used its case management powers to prevent use of the documents. The Privy Council in B v Auckland District Law Society also accepted that the privilege continued to subsist notwithstanding the documents had already been disclosed (To paraphrase ‘A cat is still a cat – it can be put back in the bag’).
So if the privilege is not confined to a privilege against compulsory disclosure (and the law of confidence cannot be relied upon either, which it couldn’t be here because of the statutory powers of the tax office) we are left with two main possibilities: a privilege against admissibility in legal proceedings or a privilege against use of the document in determining the legal rights and obligations (in this case to pay tax) of the privilege holder. Hoffmann provides some limited support for the latter interpretation in Morgan Grenfell where he stated the purpose of the privilege was to prevent disclosure and use of lawyer-client communications to the prejudice of the privilege holder.
A case can be made for the broader approach which Glencore advocated, given it is accepted that the privilege can be exercised outside of legal proceedings including in investigations by regulators. The practical question becomes how to give effect to a privilege against use in determining legal rights and obligations where the documents fall into the hands of a person who has the power to make such determinations? Glencore unsurprisingly opted for an equitable injunction, and it is not obvious to me why you can have an injunction in support of a claim right, but not an injunction in support of a privilege. The typical questions about knowledge and damage, or the burdens imposed by injunctions, that naturally concern obligations lawyers, would not arise.
To my mind, reasoning from the nature of the privilege would be a more satisfactory way of determining privilege disputes (in a world where data leaks and hacks are a major problem) then relying exclusively on, and stretching, the law of confidence to ascertain how public the information on the internet was (as was the case in Wee Shuo Woon v HT SRL [2017] 2 SLR 94) or treating documents blowing out of the window as confidential whoever picks them up as Katy notes.
Of course unauthorised disclosure of privilege material might also give rise to a breach of confidence claim. There are also good reasons why, in some circumstances, we might want regulators to be able to take into account otherwise privileged information, but these are different questions.
Best,
Andrew
A privilege is a privilege. Not a claim-right. Straighforwardly correct.
From: Tettenborn A.M. <a.m.tettenborn@swansea.ac.uk>
Sent: 15 August 2019 08:37
To: Gerard Sadlier <gerard.sadlier@gmail.com>; obligations <obligations@uwo.ca>
Subject: Re: Privilege without Confidentiality in the HCA
I agree that it's a bit odd that there should be no confidence here (unless disclosure was in the public interest).
Absent confidence, howeveer, I'm a bit unhappy about granting injunctions to those with no rights to protect or duties to enforce. Injunctions are drastic remedies, involving the judge (as Tony Weir once put it) taking off his wig and donning a helmet; if I'm not breaking a duty owed to anyone I shouldn't on principle be liable to be bossed around. The increasingly wide interpretation attached to s.37 of our Senior Courts Act and its analogues elsewhere is in my view worrying.
I should add that in the European field I'm equally unhappty about the morphing of the ECHR into a sourse of rights against anyone other than the state, and decry the trigger-happy use of injunctions in that connection too.
Andrew
On 15/08/19 00:32, Gerard Sadlier wrote:
Dear allSome of you will be aware of the High Court of Australia's judgment inGlencore International AG v Commissioner of Taxation [2019] HCA 26 (14August 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/26.htmlIn brief, the applicant sought an injunction to restrain use by theCommissioner of Taxation of documents over which the applicant claimedlegal professional privilege and which had been disclosed as part ofthe so-called Paradise Papers leak. The applicant argued thatprivilege was in itself sufficient to justify the grant of aninjunction and that it did not have to rely on the law ofconfidentiality for this purpose.The Court held the privilege is an immunity, not a right which wouldjustify the grant of an injunction, in the absence of confidentiality,which would justify the grant of injunctive relief.I must confess, with the utmost respect, that I find the reasoningconclusory at best. A number of questions do also seem to arisethough:1. The case was put on the basis that privilege would justify thegrant of injunctive relief, without reference to the law ofconfidence. I am sure that I am missing something here but that seemsto me a baffling concession. Whatever one's view of the ParadisePapers leak, the fact remains that confidential documents weredisclosed without the consent of those like Glencore who had a rightto that confidence. Everyone, including the Commissioner is presumablyaware of how these documents became public. In those circumstances,why would the Commissioner not be impressed with an obligation torespect that confidence, as against Glencore, in much the same way asa third party is obliged by equity not to accept the disclosure ofinformation which he knows is being provided by an employee in breachof confidence. Was there a concern that the Commissioner mightsuccessfully rely on a public interest or statutory defence?2. Does the HCA's reasoning suggest that a different result would bereached where privilege is constitutionally protected or guaranteed bythe European Convention on Human Rights? There, arguably at least, itis in reality a substantive legal right.3. To ask 1 in another way, how can privilege be claimed at all by aparty who cannot say either that (i) the documents are in fact beconfidential or (ii) the documents should and would be confidentialbut for some wrongful act of the other side or of which the other sideis on notice?Any comments would be most welcome as I have rarely left a judgment ofthe HCA so unsatisfied.Kind regardsGEr
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Andrew Tettenborn
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