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The confidentiality of disciplinary proceedings

In the case of Napier & Anor v Pressdram Ltd [2009] EWCA Civ 443 the Court of Appeal dismissed an appeal against a refusal to grant an injunction preventing Private Eye from publishing information concerning disciplinary proceedings against a prominent solicitor.

Following a decision by an independent body which was highly critical of various aspects of the way in which the English Law Society had handled the complaint the Solicitors Regulation Authority notified interested parties that it would reconsider what sanction ought to be imposed on the solicitor for having acted in breach of the conflict of interest principle by acting for the complainant in circumstances where there was a significant risk of a conflict of interest with another client of the firm. The appellants obtained an injunction on grounds of confidentiality preventing Private Eye from publishing information (a) about the outcome of a complaint made to the Law Society against the appellants by a former client; and (b) about a report regarding the Law Society's handling of the complaint.

Dismissing the appeal, Toulson LJ held that, ‘Despite the intricacies and technicalities of the arguments which have been advanced, the essential point in this case is really quite simple. The Law Society established a scheme for investigating complaints against solicitors. It was conducted privately in the sense that it was conducted through correspondence. But the Law Society's caseworker ... reassured the complainant that the process was not intended to end with a "secret disposal" and that if the solicitor was reprimanded (as the independent solicitor was recommending) this would have the same effect as a reprimand from the Solicitors Disciplinary Tribunal. I can see no arguable basis for considering that any reasonable person in the position of the complainant would have considered himself under a duty to the solicitor not to disclose the outcome of the proceedings to anyone else.’

Dealing with the more general issue, he added: ‘Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential… The subject matter underlying the adjudication was nothing private to the solicitor. The subject matter was the conduct of the solicitor in relation to the complainant, about which the complainant was free (subject to the law of defamation) to broadcast his grounds of complaint as widely as he wished. He was similarly free to broadcast the fact that he had complained about the solicitor to the Law Society… The solicitor has to show why any reasonable person in the position of the complainant ought to have regarded that fact as something which he was bound to treat as confidential. It cannot be because reporting the decision would involve the disclosure of underlying subject matter which was itself intrinsically confidential, for reasons already stated… I do not believe that it can be said that the complainant subscribed to a duty to treat the panel adjudication as confidential by his conduct in invoking the Law Society's extra-statutory scheme for investigating complaints against solicitors; and I cannot see any other basis on which any reasonable person in his position would have regarded himself as being under such a duty’

‘Private and confidential’
The learned Lord Justice added the following observation: ‘I would not attach significance to the fact that correspondence was headed "Private and Confidential". Many letters are marked in that way when they are intended by the sender to be for the eyes of the person to whom they are addressed, without prior reading by others, but without necessarily intending to limit the use which the receiver may decide to make of them. Secondly, the natural meaning of the statement in the letter to the complainant notifying him of the panel adjudication "Our investigations are confidential and we would prefer you not to disclose the contents of this letter to anyone else" was that it was an expression of a request rather than a requirement that he should not disclose the result of the adjudication to others.’

‘No power to impose confidentiality
He added: ‘In investigating the complaint made by the complainant, the Law Society was performing a public function. I cannot see any basis on which it could have imposed on the complainant, involuntarily, a duty not to disclose the outcome of the investigation, even if it had wished to do so. (I stress again, for the avoidance of doubt, that I am not here considering the position where intrinsically confidential information is supplied in the course of such an investigation. I am concerned only with a case where the only suggested basis of confidentiality is the procedural nature of the investigation itself.)’


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