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.)’
Categories: 5th Edition, Chapter 11, Updates