The High Court has recently dealt with the unusual issue of confidentiality obligations when representing a client. Common sense has prevailed.
The Defendant acted for the Claimant on a successful asylum application, but then a failed petition to the European Court of Human Rights, the latter of which prompted a complaint to the Legal Ombudsman, leading eventually to an agreed £50,000 settlement. The Claimant then brought proceedings against the Defendant for breach of contract and confidentiality, alleging that in the course of those two matters and the complaint, information was disclosed to the legal representatives, the Home Office and Ombudsman which put the lives of him and his family at risk.
The Defendant applied for reverse summary judgment and / or strike-out, citing various procedural issues (including limitation, CPR compliance and abuse of process given the Ombudsman decision), and an underlying lack of merit.
Whilst the Court did not accept that there was any abuse of process, the Ombudsman having not made any findings about confidentiality, it was more supportive of the Defendant on the other elements. The Court indicated that it would have been "reticent" to strike-out against a litigant in person on procedural issues alone, but there remains an expectation on a party to litigation to understand and comply with rules and deadlines. The Claimant had failed to do so. Further, and importantly, the claim was time-barred.
As to confidentiality, the Court agreed that the Claimant had not established evidence of any danger resulting from the disclosure of his address, and had undermined his own case by using those same details in public registers. Further, the Claimant had failed to identify any documents which had been leaked, or to persuade the Court that he and his family would be at risk if the information was revealed. Finally, it was considered that under the terms of the retainers, the Defendant was permitted to share data about the Claimant in performance of its duties, and similarly when the Ombudsman complaint was made there was an implied waiver of confidentiality, permitting the Defendant to instruct solicitors.
Accordingly, the claim had no real prospect of success, and was described as "fanciful rather than realistic."
This has to be correct. A solicitor cannot properly represent a client (or deal with a complaint) without being able to use and disclose key supporting data and information. In some circumstances, confidentiality is indeed pivotal, but there are mechanisms to deal with such situations, whilst still ensuring that an opponent has access to all necessary details to understand and respond to a claim or complaint. Further, the decision demonstrates that the Court will not lightly determine that there has been a breach of confidentiality, given the realities of acting in litigation, and without strong evidence in support.
