(Queen's Bench Division; Eady J; 16 November 2009)
Within a few weeks of the wife issuing a divorce petition the husband was evicted from business premises owned by one of his brothers-in-law. It emerged that the brother-in-law had also taken from the husband's password protected computer system vast amounts of material stored in the form of e-mails or attachments. The brother-in-law's case was that he had been looking for 'documents of relevance to likely issues in the divorce proceedings'. The husband obtained injunctions preventing further communication or disclosure of the relevant documents to any third party, including the wife and her solicitors, and preventing the brothers-in-law from copying or in any other way using a range of information. Following the judgment a consent order was made for all the documents to be returned by a certain date. None were handed over. The brothers-in-law claimed that no hard copies were in their possession. The solicitor to the brothers-in-law claimed that hard copies held by his firm were covered by legal professional privilege.
The underlining or highlighting of documents would not, in themselves, give rise to legal professional privilege. Also, the mere fact that some pages had been annotated did not give a clue as to the advice being offered, by giving rise to an inference that pages that had not been annotated were considered insignificant. Copies of confidential schedules should be returned; they had not been dealt with in open court, and had been marked 'confidential' to prevent general access. Revealing their contents to extraneous persons could well be a contempt of court. Solicitors' correspondence would not generally fall within legal professional privilege and should therefore be delivered up in so far as it fell within the order. The prospective appeal to the Court of Appeal did not justify retention of the documents by the lawyers.