Lawyer Confidential

Sinels has recently achieved a significant success before the Jersey Court of Appeal in a landmark case which clarifies the nature of the relationship of confidence between a lawyer and his or her client. In a judgment delivered by Bompas, JA, the appellate court overturned the decision of the Bailiff, Sir William Bailhache QC, in the Royal Court as to the standing of a lawyer to take steps to protect the confidentiality of client documents. In other words, the Court of Appeal confirmed that lawyers are able to sue in their own right in order to prevent client documents being distributed and used where neither the client nor lawyer consent to their use.

Sinels initiated proceedings to recover copies of documents stolen from either its files or from those of its client. One of the defendants, resident in Belgium, objected to the order granting leave to serve her out of the jurisdiction. That objection – an application that service be set aside for the absence of any prospect of success on the merits of the claim – amounted to an application to strike out the claim. She argued that only the client, and not Sinels, had the right to claim the return of the documents. As Sinels’ client was not a party to the claim, Sinels had insufficient interest in the documents, so she said, to found a claim for the return and/or destruction of the documents. The Bailiff agreed with the defendant and struck-out the order for service thereby effectively finding that Sinels’ claim was unarguable, despite numerous other defendants having previously been served and having (quite sensibly, it turns out) elected not to take the same point.

However, the Bailiff’s decision was reversed by the Court of Appeal which held that:

• The documents in question were confidential;
• It was not necessary to show some kind of pre-existing relationship with the recipient of the confidential documents in order to establish that a duty of confidence was owed;
• It was not a requirement of the claim that the plaintiff actually own the documents; and
• Parties to an arrangement such as that of lawyer/client had an expectation of privacy in documents of the type in question.

The Bailiff’s first instance decision was surprising, as it effectively meant that in particular circumstances only one party to a confidentiality agreement could take steps to prevent a breach of confidence. Furthermore, the Bailiff essentially attacked what most people would believe to be a crucial aspect of the relationship between lawyer and client.

The Court of Appeal’s decision acknowledges the right of lawyers to sue to protect the confidence they share with their clients. That right is based on a duty of confidence and an expectation of privacy. It might be said that following this decision, a lawyer was under an obligation to take steps to prevent or stymie a breach of confidence in such circumstances, and this would resonate with a natural understanding of the duties owed by lawyers to their clients, such as was the case in the breach suffered by Appleby in respect of the Paradise Papers.

If you are concerned about any data breaches or theft and want advice in respect of the same please do not hesitate to contact Sinels.