17
THE SUPREME COURT
497/2004
Geoghegan J
Fennelly J
McCracken J
BETWEEN
Fyffes Plc Plaintiff/ Appellant
and
DCC Plc, S&L Investments Ltd, James Flavin and
Lotus Greene Ltd
Defendants/ Respondents
Judgment of Mr Justice Fennelly delivered on the 27th day of January, 2005.
This appeal relates to discovery in an action at hearing in the High Court. The plaintiffs/appellants (hereinafter “the Appellant”) seek inspection of documents prepared in connection with the action. Though it was originally contested in the High Court, it is now accepted that the documents are such as would normally be entitled to legal professional privilege. It is claimed that the Respondents waived that privilege. The appeal is taken from the judgment of Smyth J.
In the action the Appellant claims damages against the Respondents by virtue of Part V of the Companies Act, 1990 for alleged “insider dealing.” It claims that in February 2000, the first and second named Respondents sold shares in the Appellant at a time when the third named Respondent was a director of the appellant and, in that capacity, in possession of information regarding the affairs of the Appellant company, which was of a confidential and price-sensitive nature which enabled the first, second and fourth named Respondents to make a very substantial profit. Section 109 imposes civil liability for such unlawful dealing in shares. Section 111 makes such dealing a criminal offence.
The disputed documents were sent by the Respondents to the Irish Stock Exchange in circumstances which, according to the Appellants, amounted to a waiver of the legal professional privilege attached to them. It is, therefore, necessary to explain briefly the role of the Stock Exchange.
Under section 115 of the 1990 Act, the relevant authority of a recognised stock exchange is obliged to report to the Director of Public Prosecutions (hereinafter “the DPP”) if it “appears” to it “that any person has committed an offence under” that Part of the Act.
In September 2000, the Stock Exchange wrote to the first named Respondent, stating that it was investigating dealings in shares in the Appellant in the month of February that year and seeking certain information including details of all persons aware of any information relevant to the disposals prior to their being made. The first named Respondent replied at some length and purported to reply to the request. There was no further contact from the Stock Exchange prior to December 2001, when the first named Respondent wrote to the Exchange as a result of certain media speculation. Some time prior to March 2002, the Respondents learned that the Irish Stock Exchange had referred to matter to the DPP.
Thereafter, the first named Respondent, in concert with their legal and other professional advisers, decided to endeavour to persuade the Stock Exchange to reverse its opinion and, to the extent that that was possible, to communicate with the DPP in the hope that the original complaint or communication could be withdrawn or, at any rate, with a view to persuading the DPP, with the assistance of the Stock Exchange, to drop any criminal investigation or prosecution. In particular, they made available to the Exchange copies of a number of expert reports, prepared for the defence of the Appellant’s claim. These were designed to show that any information in the possession of the third named Respondent was not price-sensitive. I will refer to the details of these communications later.
I now return to the discovery history. Having refused to make discovery of documents relating to the Stock Exchange, the Respondents were ordered to do so by Laffoy J in October 2004. In the discovery made pursuant to that order, they claimed legal professional privilege in respect of:
“Confidential communications between the Defendants, their legal advisers (either directly or through an agent including communications with Counsel) and third parties which have come into existence in contemplation and for the purpose of this action.” In a supplemental affidavit, they specified that this claim also covered certain documents appended to the disclosed documents. In particular this related to “expert reports which were, on legal advice, obtained in 2002 for the purpose of these proceedings.” In addition, it was pointed out that certain other disclosed documents “referred to the contents of the said privileged reports.” Accordingly, the passages in question were redacted from the documents as disclosed.
The Appellant challenged these claims to privilege by way of Notice of Motion for inspection of all the documents in their full unredacted form. Smyth J refused that motion.
Mr Paul Gallagher, Senior Counsel, for the Appellant, in a highly detailed written and oral submission claimed that the Respondents had waived the right to claim privilege over the documents by communicating them to the Stock Exchange. He accepted that privilege had not been waived either expressly or impliedly. Indeed, as will appear from the recital of the facts, the Respondents at all times made explicit demands that the confidentiality (and hence the privilege) of the documents be maintained by the Stock Exchange.
A central plank of the Appellant’s submission, as stated in its written submissions at paragraph 59, was that:
“It follows from the necessity for a communication to be “confidential” before privilege can be properly claimed in respect of it, that disclosure of material to a third party generally destroys any confidentiality and therefore any privilege, otherwise attaching to that communication.”
Mr Gallagher accepted that a party might, according to the authorities, retain his right to privilege over documents which were communicated to a third party for a specific, limited purpose. The principal authorities are British Coal Corporation v Dennis Rye Limited [1988] 1 WLR 1113 and Downey v Murray [1988] NI 600. However, he submitted that each of these cases concerned communications made to the police or prosecuting authorities in pursuance of a public duty to assist in the investigation of crime. In the present case, instead of using the available machinery of communicating with the DPP in the manner envisaged by section 6 of the Prosecution of Offences Act, 1974, the Respondents communicated instead with the Stock Exchange, which had no further public or statutory role once it had referred the matter to the DPP in the first instance.
Mr Gallagher submitted, as an alternative, and in reliance on the Australian case of Goldberg v Ng and others [1994] 33 NSWLR 301; 132 ALR 57, that this Court should apply the “fairness test” developed in that and other Australian cases. The Respondent had communicated the documents to the Stock Exchange in order to obtain a benefit for themselves in connection with proceedings, albeit criminal proceedings, arising from the same facts and it would be unfair to permit them to limit the effect of the disclosure of the documents in those circumstances. He submitted that the principle inherent in that decision was accepted by this Court in Hannigan v DPP [2001] 1 IR 378. That case demonstrates, it was submitted, that, where a party deploys a document to his advantage, disclosure will be ordered if it is just and equitable.
Mr Gallagher placed especial reliance on facts concerning the dealings between the Respondent and the Stock Exchange as shown by the documents actually disclosed. He drew attention to what he described as the strategy adopted the Respondent as shown in an internal memorandum:
“While there may not be a legal or procedural way in which the Stock Exchange can withdraw their file from the DPP (Alvin Price’s point) [a reference to advice from the Respondents’ solicitor], we would win a tactical and strategic battle against the DPP if the Stock Exchange conveyed to the DPP that, with the benefit of information that has come to light subsequent to their original referral, they were unlikely to be helpful as prosecution witnesses. In order for them to come to this view, it is likely that they would have to re-analyse the price sensitivity issue, probably by engaging (and properly briefing) another expert witness as discussed above. Coupled with the mens rea issue, the undermining of Fyffes as a credible witness for the DPP and the likely inadequacy of whatever expert opinion the Stock Exchange had procured, the undermining of the Stock Exchange themselves as a helpful witness would be a further reason why the DPP would have difficulty prosecuting.”
The principal argument was that this attempt to influence the DPP via the Stock Exchange was sufficient to cause loss of the privilege, though Mr Gallagher also submitted that it was possible that the evidence of any Stock Exchange witnesses in the civil action might be influenced.
The Respondents, as they frankly accept, were engaged in an attempt to encourage the Stock Exchange to the view that they had come to a premature decision and to re-open their original examination of the matter so that they might reconsider the appropriateness of their decision to refer it to the DPP.
A number of meetings took place, with the full agreement of both sides, between representatives of the Stock Exchange and experts engaged by the Respondents. By agreement, it was arranged that certain information would be provided to the Stock Exchange on a confidential basis. In particular, an arrangement was made whereby important documents would be made available for review by the Stock Exchange, in a “confidential data room,” while remaining physically in the possession and under the control of Price Waterhouse Coopers, expert accountants engaged by the Respondents.
The Stock Exchange agreed to a number of written conditions imposing strict confidentiality upon it. Notably, it agreed that, when they had completed their review, “any notes made [would] be promptly be destroyed.” It was accepted by counsel for both parties that the essence of the arrangement was that the Stock Exchange would communicate their views to the DPP, in the event that they came to a conclusion that the information in the possession of the third named Respondent was, as the Respondents claimed was demonstrated by their expert reports, not price sensitive, but not otherwise. In the latter event, they would not communicate their views to the DPP and would, as mentioned above, destroy their notes. It is only fair to point out that the Stock Exchange insisted that they could not be precluded from communicating with the DPP in the performance of their statutory supervisory functions.
The Appellant submits that the Respondent were, in the above circumstances, using the privileged documents to obtain a benefit for themselves and that they should not, therefore, be permitted to retain the privilege.
The Respondents, according to Mr Michael Ashe, Senior Counsel, were entitled to maintain the privilege. They were admittedly engaged in an attempt to influence the Stock Exchange to convey a favourable view to the DPP, but they were entitled to use the privileged documents for that specific and limited purpose without sacrificing the privilege. The Stock Exchange may have stated that they had no function from the legal point of view, but they were prepared to act as a conduit to the DPP. The Respondents are not to be criticised if, instead of availing of the possibility opened by section 6 of the Prosecution of Offences Act, 1974, they mistakenly went via the Stock Exchange.
Mr Ashe relied on passages from the judgments of the Court of Appeal in England in Paragon Finance plc v Freshfields [1999] 1 WLR 1183 for the proposition that legal professional privilege, once it is established, is absolute by reason of important principles of public policy and that the courts are not required to balance the interests of the party claiming privilege in maintaining it against the interests of the opposing party in having access to the documents.
Analysis and Conclusion
It will be crucial to the resolution of this dispute to examine the broad proposition of principle advanced by the Appellant that disclosure of material to a third party generally destroys any confidentiality and therefore any privilege.
I will return to that question having adverted to the general status and scope of legal professional privilege in our law. Finlay CJ in Smurfit Paribas Bank v A.A.B. Export Finance [1990] 1 I.R. examined the underlying principles and traced their historic development. On the facts of that case, he was concerned only to determine whether the principles extended to documents passing between solicitor and client which contained no legal advice but referred to or contained only to the client’s instructions. He identified, at page 476, the purpose of privilege as being “the requirement of the superior interest of the common good in the proper conduct of litigation which justified the immunity of communications from discovery in so far as they were made for the purpose of litigation as being the desirability in that good of the correct and efficient trial of actions by the courts.” He traced that proposition to the judgment of Jessel M.R. in Anderson v Bank of British Columbia (1876) 2 Ch D 644 and in particular the following passage at page 649:
“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman with whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule."
He also showed how the authorities had extended the scope of privilege to documents created for the purpose of seeking or giving professional advice, an issue which does not arise in the present case. Finlay CJ stated at page 477:
“Such privilege should, therefore, in my view, only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”
The learned Chief Justice did not, in my view, by those words, mean to suggest that, in cases where reliance is placed on legal professional privilege in respect of documents the courts should balance the two considerations, as it were, on a case-by-case basis. He was referring to what the policy of the law should be. In my view, whether or not documents are privileged will be determined by the application of these principles to the facts of the case. Once it is found to exist, there is no judicial discretion to displace it. I would adopt the following dictum of Lord Bingham in Paragon Finance plc v Freshfields, cited above, at page 1188:
“The nature and basis of legal professional privilege has been often and authoritatively expounded……At its root lies the obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications a degree of protection denied to communications, however, confidential between clients and other advisers. Save where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, the protection is absolute unless the client (whose privilege it is) waives it, whether expressly or impliedly.” (emphasis added)
The law, therefore, attaches significant value and accords a high degree of protection to the principle of legal professional privilege. It can, of course, be lost if it is clear that it is being used as a cloak to cover fraud. It may also be over-ridden by express statutory provision.
Waiver is another matter. Clearly a party to an action may waive privilege in express terms. A party may also be held to have impliedly waived it, as when a party does not claim privilege, but includes potentially privileged documents in the non-privileged schedule to the affidavit. Equally, a party waives the privilege attaching to documents passing between himself and his solicitor, when he elects to sue the latter. That was the subject of the Paragon case. Even there, however, there were limits. The client was held to have waived privilege in respect of documents passing between it its former solicitors, whom it was suing, but not in relation to its new firm of solicitors. Lord Bingham, at page 1192 of the report, approved the following dictum of Dillon LJ in Lillicrap v Nalder & Sons [1993] 1 WLR 94:
“Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.” The Appellant, nonetheless, argues for the broad proposition that any disclosure to a third party leads to loss of the privilege. No authority has been cited in support of such a far-reaching principle. It is not to be found in Matthews and Malek on Discovery (Sweet & Maxwell, London, 1992) dealing with the topic of waiver. Apart from the more specific cases of waiver, most of which have been discussed in these proceedings, the authors pose the question whether relevant information was supplied “with the intention of abandoning” the privilege. They footnote instances of communication to the public generally or to the media. Indeed, these references are the only support for the general proposition that disclosure defeats the privilege.
It is true that both Neill LJ in British Coal Corporation v Dennis Rye Limited and Carswell J (as he then was) in Downey v Murray grounded their decisions on the specific circumstances of the respective cases before them. In each case, the documents were communicated to a prosecuting authority. There is, however, nothing in the text of either judgment which implies the existence of a broader proposition. Neill LJ, having satisfied himself that the documents were privileged from discovery in the action, posed the question: “Has anything happened which has caused that privilege to be waived or otherwise lost?” He thought the answer was plainly “No.” Both Neill LJ and Carswell J were doing no more than following the sound practice of deciding only as much as was necessary to dispose of the particular case. They did not lay down any general principle that, in order to protect the privilege, the communication had to be to a public authority in pursuance of a public duty.
The appellant has not established the existence of any such general principle as that privilege will be lost by any communication to a third party or that, in order to avoid that result, the communication would have to be made in pursuance of a public duty. Indeed Mr Gallagher conceded in argument that communication, for example, by a party to its bankers in negotiating a loan to fund the litigation would not lose the privilege.
Before turning to Mr Gallagher’s alternative argument, based on the principle of fairness, it is interesting to note that, in the cases cited principally in support of the latter proposition, Goldberg v Ng and others, Clarke JA denied the existence of any “universal rule that the disclosure of documents produced for the sole purpose of seeking legal advice or litigation to a stranger to that litigation constitutes a waiver of the privilege in that document.” (page 676) I am quite satisfied that this is a correct statement of the law and that it undermines the first basic proposition advanced on behalf of the Appellant. In the absence of a general principle that communication to any third party will lose the privilege unless it is made in pursuit of some public duty, no legal basis has been advanced for its loss in the circumstances of the present case, when disclosure was made for a particular purpose and subject to express conditions as to confidentiality.
The second argument is based on the proposition that the matter should be governed by the principle identified in Goldberg v Ng and others. There is, indeed, some support for the existence of a notion of fairness in the judgment of Lord Bingham in Paragon Finance. He thought that:
“On the facts of the present case, the plaintiffs have undoubtedly brought their previously confidential relationship with Freshfields into the public domain, and fairness requires that Freshfields should be free to relay on any communications passing between them and the plaintiffs relevant to their defence of that claim.”However, it is clear from the context that Lord Bingham was really speaking of waiver, because, at another point, he said:
“We would not wish to exclude the possibility that there may be factual situations in which a plaintiff who sues his solicitor may be taken to have waived privilege in respect of written legal advice from other lawyers which he agreed to that solicitor seeing for the purposes of the matter on which he was currently seeking advice from him.” (emphasis added in each case)
Up to this point in time and, apart for the Australian jurisprudence, it seems clear that the circumstances in which privilege is lost are limited to the effects of some voluntary act of the person claiming it. An extreme instance is fraudulent behaviour. More commonly, the voluntary act is considered as amounting to waiver. It is probable that the application of waiver proceeds from some notion of fairness, but it is certainly not the same thing. As will be seen, even in the Australian case, fairness comes into play only when there has been some voluntary act of disclosure.
The facts of Goldberg need brief explanation. A solicitor was being sued by his former clients in the Supreme Court of New South Wales. The dispute concerned payments made or alleged to have been made by the client to the solicitor or to his wife on account of costs. The clients also informed the Law Society of New South Wales of the existence of the proceedings. The Law Society treated the matter as a complaint against the solicitor as well as notice of “failure to account” for the purposes of making a claim against a solicitors’ indemnity fund. It wrote to the solicitor seeking explanations. The solicitor, instead of providing a statement of his response, furnished the Law Society, under strict conditions of confidentiality, with certain documents which were privileged as having been prepared in defence of the civil litigation. The Law Society did not provide any of this material to the clients. Following reference to a complaints’ committee, the Law Society wrote to the clients to say that it had been decided to dismiss the complaint. Firstly, the committee was not satisfied that there had been any professional misconduct. Secondly, the clients should pursue their own remedies.
The clients sought discovery, in the litigation, of the documents which the solicitor had disclosed to the Law Society. A majority both in the Court of Appeal of New South Wales and the High Court of Australia overruled the solicitor’s claim of privilege. There were, however, strong dissenting judgments in both courts.
It emerges from a reading of the judgments that the Australian courts had acted on a principle that a claim to privilege might be disallowed where a party had made voluntary disclosure of privileged documents in circumstances where it would be unfair to deprive the opposing party in the litigation of equal access to them. Of particular materiality was the choice of the solicitor to communicate to the Law Society in defence of the complaint of professional misbehaviour documents which were privileged in the civil action, when he could have made a full statement which would not have enjoyed privilege.
It is clear that the Australian courts were deeply divided as to whether the solicitor in Goldberg had lost the right to privilege over the documents he disclosed to the Law Society. He had expressly insisted on confidentiality. It does emerge, at the same time, that the judges were concerned to apply a notion of fairness developed in earlier cases. Several of the judges cited a dictum from the pre-eminent treatise on the American law of evidence, Wigmore, Evidence in Trial at Common Law (1961), vol 8, paragraph. 2327:
“When his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended it or not. He cannot be allowed, after disclosing so much as he pleases, to withhold the remainder.” Of especial importance also was the earlier Australian case, Attorney General (NT) v Maurice (1986) 161 CLR 475. The language of the judges in the latter case is revealing: “the question of whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it is privileged from production (Gibbs CJ); The holder of privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication…” “In order that the opposing litigant is not misled by an inaccurate perception of the disclosed documentation, fairness will usually require that waiver as to one part …should result in waiver as to the rest….” (Mason and Brennan JJ); “…ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings……be treated as waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance on professional privilege.” (Deane J). These dicta all concern attempts to abuse privilege by making partial and selective disclosure.
This is not an entirely antipodean notion. The High Court of Australia referred to some established English precedent, notably Great Atlantic Insurance v Home Insurance Co [1981] All ER 485 where the headnote states:
“……the introduction by the plaintiffs of part of the memorandum into the trial record waived privilege in regard to the whole document, since a party was not entitled to disclose only those parts of a document that were to his advantage, and both the court and the opposing party were entitled to know whether the material released from privilege represented the whole of the material relevant to the issue in question.”
All of this fits in very neatly with the decision of this Court in Hannigan v Director of Public Prosecutions, cited by Mr Gallagher. In that case, a Garda officer had summarised the effect of a document otherwise privileged, on public interests grounds, in an affidavit. The judgment of Hardiman J, with the agreement of the other members of the Court dealt with the effect of that act as follows at page 383:
“…...[t]he status of a document from the point of view of privilege or immunity from disclosure changes once it has been referred to in pleadings or affidavit.”
Hardiman J cited Matthews and Malek, op. cit. at paragraph. 9.15, for the proposition that:
“The general rule is that where privileged material is deployed in court in an interlocutory application, privilege in that and any associated material is waived…”
Returning to the Australian cases, it is of note that Kirby P, in his dissenting judgment in Goldberg, explained Attorney General (NT) v Maurice as being concerned with unfair conduct before the particular tribunal which would ultimately determine the rights of the parties. His own view was that implied or imputed waiver did not apply to “conduct outside the court or quasi-judicial tribunal” deciding the issue between the parties. The effect is that a party may not approbate and reprobate, or more colloquially, “blow hot and cold.” A party will not be permitted to lift the corner of the veil of secrecy only to replace it when his opponent asks to see what is underneath.
The main controversy in Goldberg was as to whether the principles so developed should be applied to the documents disclosed by the solicitor to the Law Society. The dissenting judges were strongly of the view that they should not. It is unnecessary to express any view on that matter, which was for the responsible courts in that jurisdiction to decide. I would conclude, however, that the well-established rule regarding privilege, whether including a notion of fairness or not, goes no further than the proposition that a party who seeks to deploy his privileged documents by partially disclosing them or summarising their effect so as to gain an advantage over his opponent in the action in which they are privileged, runs a serious risk of losing the privilege. I do not deny that the partial disclosure which has that effect might, in some circumstances, be made to a third party, but it would have to be for the purpose of gaining an advantage in that action. I would add that express stipulations of confidentiality, such as in the present case, will necessarily be a material factor. They will obviously negative any claim of express waiver and most cases of implied waiver.
In the present case, as Mr Ashe has submitted, there is no relevant nexus between the transactions between the Respondents, the Stock Exchange and the DPP on the one hand and the civil action on the other. The criminal investigation, it is true, concerned precisely the same subject matter as the civil action. The basis of civil and criminal liability flows from the same section of the Companies Act. On the other hand, criminal and civil proceedings are entirely distinct. Mr Gallagher could not argue, nor did he, that whether or not the DPP instituted criminal proceedings would have any effect whatsoever on the High Court judge hearing the civil action or that the evidence in that action could be affected by events occurring in the context of a possible or actual criminal prosecution. To the extent that Mr Gallagher suggested that there might have been some indirect effect on the views of Stock Exchange officials, it has not been demonstrated that this was other than an incidental aspect of the transactions with the Stock Exchange or that it could affect the civil action in any way.
The objective of the Respondent was, by influencing the Stock Exchange, to seek to persuade the DPP not to proceed with the criminal investigation. It is no part of the court’s function to comment on the general desirability of such behaviour. It was designed to obtain an advantage for the Respondents, but it was not an advantage which placed or would have placed the Appellant at any corresponding or related disadvantage in the civil action.
In my view, the Respondents did not commit any act amounting to an implied or imputed waiver of their privilege. I would dismiss the appeal.
|
25
THE SUPREME COURT
497/2004
Geoghegan J
Fennelly J
McCracken J
Between:
Fyffes Plc
Plaintiff/ Appellant
AND
DCC Plc, S&L Investments Ltd, James Flavin and
Lotus Greene Ltd
Defendants/ Respondents
Judgment of Mr Justice McCracken delivered the 27th day of January 2005
___________________________________________________________
General Background
This is an appeal from a decision of the High Court (Smyth J) given on 19th November 2004 refusing an application, pursuant to Order 31 Rule 18 of the Rules of the Superior Courts, for the production for inspection by the Appellant (hereinafter called “Fyffes”) of certain documents the existence of which had been disclosed by the Respondents to Fyffes in an affidavit of discovery, but in respect of which privilege was claimed by the Respondents. In the substantive proceedings, which in fact are at present at hearing before the High Court, Fyffes claims that the third named Respondent was in possession of price sensitive and confidential information in relation to the affairs of Fyffes, which information had been obtained by him in his position as the Director of Fyffes. It is claimed that he allowed this information to be disclosed to the other Respondents leading to the sale by them of shares in Fyffes at a price over and above their full value and that this constituted the use of insider information by the Respondents contrary to the provisions of Part V of the Companies Act 1990. In the course of preparing for this litigation the Respondents obtained expert advice from a number of persons, and it is common case before this Court that the various reports and documents containing such advice would in the normal course of events be entitled to privilege. The issue in this case is whether under certain circumstances which will be detailed below, that privilege has been lost or waived. It is not suggested that there was a deliberate waiver of privilege on the part of the Respondents, but rather that such waiver out to be imputed due to the particular facts of the case.
The Relevant Legislation
Part V of the Companies Act 1990 relates to insider dealing. The relevant sections under that part of the Act are:-
S.108. “(1) It shall not be lawful for a person who is, or at any time in the preceding 6 months has been, connected with a company to deal in any securities of that company if by reason of his so being, or having been, connected with that company he is in possession of information that is not generally available, but, if it were, would be likely materially to affect the price of those securities.”
S.115. “(1) If it appears to a relevant authority of a recognised stock exchange that any person has committed an offence under this Part, such authority shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to the Director of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of such authority and relating to the matter in question, as the Director of Public Prosecutions may require.”
Stock Exchange Investigation
On 1st September 2000 the Stock Exchange wrote to the first named Respondents (hereinafter called “DCC”) stating that they were investigating dealings in shares of Fyffes and asking certain questions in relation thereto. On 8th September 2000 DCC replied to the Stock Exchange and furnished certain documentation, which is not the subject of this motion. It appears that shortly afterwards, and without any further communications with DCC, the Stock Exchange, in accordance with s.115 of the 1990 Act, reported the matter to the Director of Public Prosecutions and presumably furnished him with a copy of DCC’s letter of 8th September 2000 and the enclosures which were with it. It should be noted that the documents now in dispute were not in fact in existence at that time. As far as DCC was concerned nothing further happened for over a year, and there was no communication to it from either the Stock Exchange or the Director of Public Prosecutions. At the end of November 2001 reports appeared in the press that the matter had been referred to the Director of Public Prosecutions by the Stock Exchange, and on 5th December 2001 DCC wrote to the Stock Exchange inquiring about this and further stating that they wished to notify the Stock Exchange that they did not have any price sensitive information at the relevant time. At some stage during the year 2002 the expert reports and advice which are now in issue were obtained by DCC.
Understandably the Respondents were very concerned at the possibility of a prosecution being taken against them, or some of them, in relation to insider trading. On 24th September 2002 they held a meeting with their accountants and solicitors to discuss the matter and to determine whether any action could be taken to prevent such a prosecution. The Appellant places considerable reliance on a memorandum prepared after that meeting which stated, inter alia:-
“While there may not be a legal or procedural way in which the stock exchange can withdraw their file from the DPP (Alvin Price’s point), we would win a tactical and strategic battle against the DPP if the stock exchange conveyed to the DPP that, with the benefit of information that has come to light subsequent to their original referral, they were unlikely to be helpful prosecution witnesses. In order for them to come to this view, it is likely that they would have to reanalyse the price sensitivity issue, probably by engaging (and properly briefing) another expert witness as discussed above. Coupled with the mens rea issue, the undermining of Fyffes as a credible witness for the DPP and the likely inadequacy of whatever expert opinion the stock exchange have procured, the undermining of the stock exchange themselves as a helpful witness would be a further reason why the DPP would have difficulty prosecuting.”
Following this, a meeting was held with Tom Healy, Chief Executive of the Stock Exchange, on 30th October 2002. It was disclosed to him that expert advice had been obtained by DCC to the effect that any information in the possession of the third Respondent at the relevant time was not price sensitive. In a memorandum relating to that meeting made by DCC’s accountants, which again is strongly relied upon by Fyffes, it is recorded:-
“Another issue that was raised, by Tom (Healy) on a number of occasions during the meeting and in a subsequent telephone with me on the morning of Thursday 31st October was with regard to the confidentiality of the information that is provided to the stock exchange. Tom’s advice was that the information should be made available to them on a confidential basis and DCC should require that this information be returned with copying. He made this point because he said he recognised if the stock exchange’s conclusion was not positive from the company’s perspective they would not want information to be circulated widely as it meant that they would be playing their hand in advance. However, he said that if they were giving a positive recommendation to the DPP that the information was not price sensitive, it is thought likely, as mentioned earlier, that the DPP would want to see the documentation which gave rise to the stock exchange’s change of view.
In his telephone call to me on the morning of 31st October, Tom noted that he felt that once they received any information, if they received a formal request from say the DPP he thought it likely they would have to provide it. Notwithstanding this, he thought that if information was made available to them that the company should try to make it available on as restrictive a basis as possible.”
On 1st November 2002 DCC’s accountants wrote to Tom Healy referring to the meeting of 30th October and stated:-
“Having considered the matter, we have recommended to DCC Group that it make available for review by the Exchange new and relevant information and documentation in its possession relating to the above sales of shares. We believe that such information may not have been available to the Exchange at the time of making its report under the Companies Act.
Much of the information to be made available has been obtained and compiled for the purposes of defending a civil claim and therefore, as discussed at our meeting and subsequent telephone conversation, the information would have to be provided on a confidential and restrictive basis. We have proposed to DCC Group that the information and documentation be made available in a confidential data room located in our offices. …”
Enclosed with that letter was a draft confidentiality undertaking. By letter of 26th November 2002 Tom Healy of the Stock Exchange replied that he felt the terms of the proposed confidentiality undertaking were too restrictive and said:- “On a more substantive note, we are uncomfortable with the blanket nature of the confidentiality undertaking. We fully accept that we would not copy or take away any documentation, and also that we would not retain any notes of the content of this documentation. We are also happy to commit to keeping all information which we would obtain exclusively from this documentation confidential from all third parties, with the exception of the DPP. Our relationship with the DPP is such that we believe we should disclose the fact that we conducted such a review, and the broad conclusions which we would draw from that review.”
Following this exchange of correspondence, a confidentiality agreement in the form of a letter dated 2nd December 2002 was signed by Tom Healy. Its terms were more or less in accordance with his letter of 26th November and should be quoted in full. It read:-
“Dear Sirs,
We understand that it is proposed that further information and documentation in regard to certain share sales (“the information”) will be made available for review by Tom Healy, Brian Healy and Ailish Byrne on behalf of the Irish Stock Exchange.
In that regard, we agree that:-
(A) The information will be kept secret and strictly confidential by us and will not (save with your prior written consent) be passed to any third party;
(B) The information will not be used by us or any of our servants or agents for any purpose other than the review referred to above;
(C) No copies of any of the information which is in written or other permanent form will be made by us (save with your prior written consent);
(D) When we have completed our review (which will be by not later than 31 December 2002) any notes made will be promptly destroyed.
Our agreement at (A) above will not, however, apply to:-
(I) Any information which, notwithstanding our above undertaking, we are obliged to disclose by law or by order of a court of competent jurisdiction (in which event we will advise you immediately);
(II) any information which comes into the public domain otherwise than through breach of the foregoing commitments.
Notwithstanding the foregoing, we will be entitled, following our review of the information, to inform the Director of Public Prosecutions of the fact of that review having been carried out and of the broad conclusions drawn by us from the review.”
Subsequent to this undertaking, the documentation in issue was inspected by officials of the Stock Exchange at the premises of DCC’s accountants. There was further correspondence and meetings between the advisors of DCC and the Stock Exchange and ultimately by a letter dated 3rd July 2003 the documents in issue, which included reports of five independent experts, were sent by DCC to the Stock Exchange with the request that they be transmitted by the Stock Exchange to the Director of Public Prosecutions, which was done in due course.
The Appellant’s Argument
Fyffes argue that there was a deliberate decision by the Respondents to influence possible witnesses from the Sock Exchange in criminal proceedings by furnishing these documents, and in turn in the hope that the Stock Exchange would influence the Director of Public Prosecutions not to proceed against the Respondents. They argued that the way this was done is very relevant, in that the documents were not furnished directly to the Director of Public Prosecutions to influence his decision in relation to a prosecution, but were furnished to the Stock Exchange, and it is further suggested that this was a pointless exercise in one sense, in that the Stock Exchange were functus officio once they had reported to the Director of Public Prosecutions. I do not see any great relevance in the argument that they were functus officio, but in any event I think that is incorrect. Under s.115 the Stock Exchange had an ongoing obligation to the director of Public Prosecutions to furnish all documentation in their possession which he might require, and therefore there still remained a function to be performed by the Stock Exchange. Fyffes main objection to this procedure appears to be that in effect they were giving the information and documents to the Stock Exchange on the basis that the information would be passed on to the Director of Public Prosecutions if the news was good, but not if the news was bad. It was suggested that the reality was that the various reports were being vetted by the Stock Exchange.
This may well have been the original intention of DCC, although it does appear from the memorandum of the meeting of 30th October that the whole question of confidentiality was a suggestion of Tom Healy of the Stock Exchange. However, whatever may have been the original intention, it is quite clear that this was not achieved by the terms of the confidentiality agreement, and indeed in the letter of the 26th November from Tom Healy it was made quite clear that the Stock Exchange would not be prepared to keep the information confidential from the Director of Public Prosecutions. Furthermore, under the terms of s.115, the Stock Exchange would of course be bound to furnish all documentation to the Director of Public Prosecutions if required. The confidentiality agreement itself is expressed not to apply to any information which the Stock Exchange would be obliged to disclose by law, and furthermore reserves the right of the Stock Exchange in any event to inform the Director of Public Prosecutions of the fact of a review being carried out and of the conclusions from that review. Clearly, therefore, when the documents were ultimately furnished, the undertaking as to confidentiality did not apply to information to be given to the Director of Public Prosecutions, whatever may have been the outcome of the review.
Fyffes also contend that it would be quite unfair and unjust that the Respondents could have the benefit of influencing the Stock Exchange by the furnishing of these documents, while in what is basically the same dispute or issue, Fyffes would have to contest the issue without the benefit of the documents. While they acknowledge that the Respondents intended to preserve confidentiality and could not be said in any way to have deliberately waived privilege, nevertheless a waiver should be imputed by reason of these matters.
The Respondents’ Case
The Respondents fully acknowledge that the whole purpose of the exercise was to persuade the Stock Exchange to try to influence the Director of Public Prosecutions against proceeding with any prosecution. They say they were perfectly entitled to do this as it was a matter of grave importance commercially to DCC in particular. A prosecution for insider trading, even if unsuccessful, could have a very serious effect on DCC’s commercial activities and on its share price. They argue that the directors of DCC had not only a right to take this course, but had a duty to protect their shareholders. They believe that the Stock Exchange made the decision under s.115 to report the matter to the Director of Public Prosecutions without knowing all the facts, and they were entitled to bring to the attention of the Stock Exchange information which had not been before them, and which could have influenced their decision.
They further say that it was quite clear at all times that they were wishing to preserve their confidentiality, and that on the authorities referred to below, a disclosure of confidential or privileged documents for a limited purpose did not involve a loss of the privilege which attached to those documents.
The Authorities
There do not appear to be any authorities in this jurisdiction dealing directly with the issue. The Respondents rely on a number of English decisions, including a decision of the Privy Council in a New Zealand case and a Northern Ireland decision, while Fyffes relies primarily on an authority of the High Court of Australia.
In British Coal Corporation v. Dennis Rye Ltd & Anor [1988] 3 All ER 816 the plaintiff sued the defendants, inter alia, for damages for fraudulent or negligent misrepresentation and conspiracy to defraud. A police investigation took place into the allegations, and the plaintiff furnished to the police certain documents which had been created for the purpose of the civil action, in order to assist the police in their investigations. In due course criminal charges were brought, and these documents were disclosed by the prosecution to the defendants. The defendants were acquitted in the criminal proceedings, and in the civil proceedings, the plaintiff applied for a return of all documents and an injunction restraining the defendants from using the documents or any information obtained in them in the civil action. The defendants alleged that by reason of the plaintiff’s actions any privilege attached to the documents had been lost. In the Court of Appeal Neill L.J. in the course of his judgment posed the question “Has anything happened which has caused that privilege to be waived or otherwise lost?”. He then stated at page 821:-
“In my judgment the answer to this question is plainly no. Let it be assumed that all the documents have come into the possession of the defendants with the implied consent of the plaintiff and that it could be established that it would have supplied the category B documents even without an order of the court. Nevertheless, it is clear that the plaintiff made the documents available for a limited purpose only, namely to assist in the conduct first of a criminal investigation and then of a criminal trial. This action by the plaintiff, looked at objectively as it must be, cannot be construed as a waiver of any rights available to it in the present civil action for the purpose of which the privilege exists.”
He then commented on page 822:- “In my judgment the action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver or a privilege to which it was entitled in the civil proceedings. Its action in regard to both the category A and the category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff’s action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.”
This case was expressly approved by a different Court of Appeal in Goldman v. Hesper [1988] 1 WLR 1238. This case concerned the disclosure of privileged documents in the course of taxation of costs. The Court of Appeal cited the British Coal Corporation case with approval and stated at page 1245:-“By the same token voluntary waiver or disclosure by a taxing officer on a taxation would not in my view prevent the owner of the document from reasserting his privilege in any subsequent context.”
The situation was considered more recently by the Privy Council on appeal from the Court of Appeal in New Zealand. In B & Ors v. Auckland District Law Society & Anor [2004] 4 All ER 269 there was a situation where a complaint was made to the Law Society against the plaintiffs who, in the course of answering the complaint, disclosed certain privileged and confidential documents to counsel appointed by the Law Society. The documents were furnished on the express basis that, by furnishing the documents, privilege was not waived. Subsequently, the plaintiff sought the return of the documents from the Law Society on the basis that that they were privileged, but the Law Society refused to acknowledge the privilege or return the documents on that basis and maintained that any privilege which may have existed had been waived. They also argued that privilege could not be waived for a limited purpose only. In the course of the judgment of the Board at page 285 Lord Millet said:-
“The Society’s argument, put colloquially, is that privilege entitles one to refuse to let the cat out of the bag; once it is out of the bag, however, privilege cannot help to put it back. Their Lordships observe that this arises from the nature of privilege; it is nothing to do with waiver. It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only: see British Coal Corporation v. Dennis Rye Ltd (No. 2) [1988] 3 All ER 816 and Bourns Inc v. Raychem Corporation [1999] 3 All ER 154. The question is not whether privilege has been waived, but whether it has been lost. It would be unfortunate if it were. It must often be in the interest of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”
It should also be mentioned that the British Coal Corporation case has been expressly approved of in Northern Ireland in the case of Downey v. Murray [1988] NI 600. In that case, the plaintiff in proceedings for damages arising out of a motor accident had made a written statement to her solicitors. The solicitors forwarded a copy of the statement to the police subject to a condition that it should not be communicated to any other person. The police did not in fact prosecute the defendant and it was held that the statement was privileged and that the privilege had not been lost or waived by the disclosure of the statement to the police. Carswell J, after citing both the British Coal Corporation case and the Goldberg case said at page 605:-
“I respectfully agree with the reasoning of the court in the two cases which I have just cited and propose to follow. When one applies it to the present case, the conclusion follows that the plaintiff’s solicitors were entitled to impose the condition upon their use of the copy statement which is expressed in Mr Hasson’s affidavit. The waiver of privilege was limited to the purposes specified by them, and when the police decided not to prosecute the defendant the privilege remained intact.”
These are the cases primarily relied upon by the Respondents, and was the approach preferred by the learned High Court Judge. However, Fyffes urged that the Court should follow the reasoning of the Court of Appeal of the Supreme Court of New South Wales and the High Court of Australia in Goldberg & Anor v. Ng & Ors. In that case proceedings were brought against a solicitor and his wife by former clients, who also lodged a formal complaint to the Law Society of New South Wales. The Law Society received certain documents from the solicitor on condition that privilege would be maintained, and dismissed the complaint. The clients, who were plaintiffs in the civil action, sought to recover the documents from the Law Society, and the solicitor sought a declaration that the documents produced to the Society were subject to legal professional privilege. The decision of the Supreme Court is reported at [1994] 33 NSWLR 639. In the course of his judgment Clarke JA expressly disagreed with the British Coal Corporation case and said at page 677:-
“There can be no question of express waiver in this case. Goldberg was at pains to ensure that confidentiality in the material he had prepared for submission for legal advice was maintained. The only question which does arise is whether the law should impute a waiver in all the circumstances. Put another way; do considerations of fairness require that the disclosure of the material to the Law Society be treated in law as a waiver of the privilege in favour of the respondent?
I do not regard the answer to this question as simple. On the one hand there is no suggestion that the respondents’ conduct of the present litigation has itself been influenced or prejudiced by the disclosure of the material to the Society. The respondents do not know the contents of the documents and, obviously enough, have not acted to their prejudice as a consequence of any knowledge of those contents. On the other hand, Goldberg had used the privileged material to his advantage and to the disadvantage of the respondents. The Law Society resolved, as a consequence of the information contained in the privileged material, to dismiss the complaint which had been brought by the respondents and to advise the respondents to take proceedings in court.
…
For my part I have concluded that it would be unfair to permit Goldberg to maintain his privilege in the material. In saying this I am taking account of the fact that in the normal course he would have provided the Law Society with statements in response to the complaints, which were not privileged, and these would have been discoverable. … He should not be permitted to enjoy the benefits derived from the submission of the material to the Law Society without being subjected to the normal consequences of the submission of his own arguments to it. In other words his voluntary decision to use privileged, rather than non-privileged, material to provide his answer to Ng’s complaint should not enable him to keep the contents of his answer from Ng.”
On appeal the High Court of Australia upheld the decision. The judgment is reported in 137 ALR 57 where the general principle was set out at page 66 as follows:-
“It follows that the critical question in the present case is whether Mr Goldberg’s disclosure of the privileged documents to the Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the Ng’s in their related equity proceedings between the Ng’s and the Goldberg’s.”
It should be said that neither of these were unanimous decisions, the Supreme Court of New South Wales being divided two to one and the High Court of Australia being divided three to two.
Accordingly, it is argued on behalf of Fyffes that the true test is a test of fairness, and that in the present case it would be unfair to Fyffes to allow the Respondents to use the documents in an attempt to prevent a prosecution, while still not disclosing them to Fyffes.
Assessment of Authorities
Insofar as there is conflict between the Goldberg decision and the British Coal Corporation case and those which followed it, I prefer the reasoning in the British Coal Corporation case. The principle of privilege arising in the preparation or conduct of a case is based on the proper administration of justice. This requires that a litigant must be in a position to communicate freely with his or her legal advisors, and further must be entitled to obtain expert evidence from third parties to assist, not only in the preparation of the case, but in the assessment as to whether there is any case to be made. While there is not now any issue in this case as to whether the documents in question were privileged prior to their disclosure to the Stock Exchange, nevertheless in considering the question of waiver it is important to remember at all times that privilege does not exist merely for the protection of a party, but also exists to ensure the proper administration of justice.
There may be many situations in which it is desirable, or even mandatory, that privileged documents be disclosed to a third party for a limited purpose. Both the British Coal Corporation case and the Downey case related to disclosing documents to police authorities where a prosecution was in contemplation. Both the B case and the Goldberg case related to disclosing the documents to the relevant law society which was the regulating body of the party who made the disclosure. An example of mandatory disclosure actually arises in the present case, where under s.115 of the 1990 Act the Stock Exchange must disclose all documents in its possession to the Director of Public Prosecutions if requested to do so. If such disclosures are to be governed solely or primarily by a concept of fairness, as is suggested in the Goldberg case, each case is going to be looked at subjectively according to its own particular facts without any particular regard to a general rule. In my view this is highly undesirable. While one cannot lay down absolute rules in matters such as this, it is essential that there should be as great a degree of certainty as possible, so that parties can reasonably foresee the result of actions of disclosure taken by them. Were that not so, it is possible that serious injustices could occur because a party might fail to make a disclosure due to the fear that they might lose the benefit of a legal privilege to which they were entitled.
In saying this, I am not ruling out the fact that there may be cases in which the question of fairness arises, and the general rule that a disclosure for a limited purpose does not amount to a waiver may have to give way where a serious injustice might result. With the greatest respect to the Australian Courts, I do not believe that such a serious injustice arose in the Goldberg case.
Conclusion
Under s.115 of the Companies Act 1990 the Stock Exchange, or more accurately a relevant authority of the Stock Exchange, has a statutory obligation to report certain matters to the Director of Public Prosecutions. The Stock Exchange is also, in general terms, the regulatory body governing a number of matters connected with the conduct of the affairs of quoted companies and of the directors and shareholders of such companies. It is very much in the public interest that a quoted company, and the shareholders and directors of a quoted company, should cooperate fully and openly with the Stock Exchange to ensure that it can properly exercise its regulatory function. In the present case, the Stock Exchange, pursuant to its functions under s.115, made a determination to refer the matter to the Director of Public Prosecutions in reliance on certain limited information furnished to it by DCC, and presumably in reliance on other information in its possession. DCC made the somewhat justified complaint that there was no further communication with them, and no further information was requested from them by the Director of Public Prosecutions. In any event, when further information was available to DCC, through the reports of experts which were subsequently obtained, it seems to me only proper that such information should be given to the Stock Exchange. While, of course, once the reference to the Director of Public Prosecutions has been made, the decision as to what future action to take is for him and not for the Stock Exchange, nevertheless I see nothing improper in DCC giving further information to the Stock Exchange and asking that it be sent to the Director of Public Prosecutions for consideration by him, if the Stock Exchange should think this was proper. It is of course in the interests of DCC that there should be no prosecution, but equally it is in the public interest that a decision as to whether there should be a prosecution should be taken by the Director of Public Prosecutions in the full knowledge of all the facts, not only those which were originally communicated to him.
I do not accept the argument put forward on behalf of Fyffes that DCC acted improperly in furnishing the documents to the Stock Exchange rather than directly to the Director of Public Prosecutions. While there may originally have been some suggestion, oddly enough emanating from the Stock Exchange rather than from DCC, that there should be some form of vetting process, and further information should only be given to the Director of Public Prosecutions if it would benefit DCC at the end of the day this was not the basis on which the documents were furnished to the Stock Exchange. The confidentiality agreement makes it quite clear, firstly that the Stock Exchange were at liberty to make a report to the Director of Public Prosecutions on its views in the light of the documents, whether such report be in favour of or against DCC, and secondly, that the Stock Exchange, being aware of its obligations under s.115, expressly reserved the right to disclose the documents if there was a legal requirement for them to do so.
On the question of fairness or unfairness, it is of course obvious that there was an advantage, or potential advantage, to DCC in disclosing these documents in the limited fashion in which it did so. However, I cannot see how it can be said that Fyffes were placed at any disadvantage through the disclosure of the documents. There is an important distinction to be drawn between the facts of the present case and the Goldberg case, in that in the latter both the civil action and the inquiry by the regulatory authority were instigated by the Ng’s, while in the present case there is no suggestion that Fyffes were in any way responsible for the actions of or investigation by the Stock Exchange. While it may be argued that there is a peripheral advantage to DCC, in that a prosecution might damage them in the civil action, this does not come remotely near the serious consequences which would have to exist were the general rule to be set aside on the basis of unfairness.
It is not necessary for the purposes of the present case to determine the limitations which may exist as to the reasons for a limited disclosure. Clearly there are circumstances in which a limited disclosure may not be protected, as for example, if it were made to an interested party solely for the purpose of embarrassing or prejudicing the other party in civil proceedings. It is sufficient to say that the basic rule applies where there is a nexus between the disclosing party and the party to whom the documents are disclosed. Whether there are circumstances in which privilege may be preserved where there is no such nexus is beyond the scope of this decision.
Accordingly I would dismiss this appeal.
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