Legal privilege/confidential information – JsC BTA Bank v solodchenko and others

JsC BTA Bank v solodchenko and others was an interesting decision in which the Chancery Division was asked to explore the boundaries between the closely related doctrines of legal professional privilege and the duty to protect confidential information. Henderson J ruled that the Court did have jurisdiction to order the disclosure of confidential information from the Respondent solicitors firm (in this case contact details for their client). The protection against disclosure of confidential information could be overridden in circumstances where such information was not privileged as the public interest dictated that compliance with court orders should be enforced where possible. The Respondents client s had not complied with his disclosure obligations under a Freezing Injunction and the Applicant bank sought his committal for contempt during which hearing s did not attend and a warrant was issued. He was later sentenced to imprisonment in absence still having refused to comply with the terms of the Order. significantly, through his solicitors, he sought adjournments of the relevant hearings so that, despite failing to comply with the terms of the Order, he was clearly still instructing them and aware of the outcome of the interlocutory proceedings. He had given contact details to his solicitor in express strict confidence. Henderson J was clearly troubled by the principle of making an order that breached confidentiality in the terms sought and, it is of note that he said he probably would not have made the Order were it not for the committal proceedings. In short, therefore, it was the conduct of the Respondent that was instrumental in Henderson J taking the unusual step to order disclosure. Practitioners should take note that the Court has jurisdiction to make such an order and it would be advisable to make this clear in client care information. However, this decision ought not be viewed as one setting a general principle but rather one on the specific facts of this case where the Respondent had wilfully breach the terms of the Order and failed to turn up to court hearings whilst continuing to instruct his solicitors. Where solicitors are acting for clients who are held to be in contempt they should warn them as to the qualifications to the duty to preserve confidentiality which are highlighted in this judgment. significantly, Henderson J refused to Order that the Respondent solicitors disclose details of their clients assets as such information was almost certainly the subject of privilege.