Napier & Another v Pressdram Ltd
Reference:  EWCA Civ 443
Court: Court of Appeal
Judge: Hughes, Toulson and Sullivan LJJ
Date of judgment: 19 May 2009
Summary: Breach of confidence - injunction - disciplinary investigations - privacy - Legal Services Ombudsman - s.23 Courts and Legal Services Act 1990 - s. 44D & s. 44E Solicitors Act 1974 - Legal Services Act 2007
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Instructing Solicitors: Carter-Ruck for the Claimants; Davenport Lyons for the Defendant
An appeal from a refusal to grant an injunction restraining Private Eye from publishing the outcome of a complaint to the Law Society and an ombudsman’s review of the Law Society’s handling of the complaint. The appellants were the senior partner of a law firm, and the firm itself. The appellants argued that obligations of confidentiality were implied by (1) the private nature of the disciplinary investigation up to initiation of public tribunal proceedings, (2) the fact that the Solicitors Regulation Authority decides whether publication is in the public interest, and had decided against publication in this case, (3) S.44 D & E of the 1974 Act, which allow for the solicitor to appeal against any decison by the SRA to publish, and (4) the fact that the 1990 Act provides for publication of Ombudsman’s reports and findings only in strictly limited circumstances.
Whether the appellants were entitled to an injunction to restrain publication of findings of breach of the Law Society rules and any information that would identify the solicitor or the firm as being the subject of the ombudsman’s report.
Dismissing the appeal,
1. No reasonable person in the position of the complainant, having invoked the Law Society’s scheme for investigating complaints and learning of findings (partly) in his favour, ought to have regarded these matters as confidential. The information was not private or confidential—confidentiality was only claimed in the procedural nature of the investigation itself. There was no breach passing the information to Private Eye.
2. Although many disciplinary inquiries are carried out in private, the result is not necessarily confidential to the parties. Nor does disclosure of an outcome denigrate the procedure used—but provides public confidence in regulation. In 2007 the SRA announced findings of misconduct would be publicised.
3. Parliament had not introduced any restrictions on disclosures that could be made by parties in complaints procedures in the Legal Services Act 2007.
The respondent’s public interest ground were not considered.
The Court adopted the traditional approach to deciding whether someone to whom information is imparted comes under an obligation of confidentiality. No significance was attached to the routine use of ‘private and confidential’ in correspondence, and the expression of a preference that no information be disclosed was viewed as a ‘request rather than a requirement’ by the Court of Appeal. The time for imposing confidentiality on an investigation will be at the outset.
Since it is now open to the complainant (or anyone else) to publish information generated by disciplinary investigations and the outcome, the procedures laid down by the SRA and statute for deciding what should be published and when are of only limited effect: the Court of Appeal held that those procedures were there because publication by the SRA or the Ombudsman would attract privilege in the law of defamation, and so needed to be controlled.