"It does not follow that documents obtained lawfully in one jurisdiction are available for use in litigation in another." The High Court confirms in Suppipat v Siam Bank [2022] EWHC 381 (Comm) that, where documents obtained in litigation outside the jurisdiction are proposed to be put in use by a party to English proceedings, English law, as the lex fori, will determine the questions of loss of privilege and confidentiality.
Introduction
This was an application in relation to the use of documents in a high profile claim worth $2bn concerning an alleged fraud by Thai businessman Nop Narongdei and several others, including Thailand's third largest commercial bank, Siam Commercial Bank. The claim arises out of the sale of Thailand's largest wind energy company by its founder, Mr Nopporn Suppipat. The trial is listed for 17 weeks in the Commercial Court beginning in October 2022.
Facts
The First Claimant ("NS") founded two renewable energy companies which operated exclusively in Thailand ("WEH" and "REC"). NS was the beneficial owner of 97.94% of the shares in REC, and REC held 59.46% of the shares in WEH. Some of WEH's operations were financed by Siam Commercial Bank, the third largest commercial bank in Thailand, of which the King of Thailand is a significant shareholder ("SCB").
In 2014, criminal charges were brought against NS for various alleged offences including insulting the King, Queen and heir to the throne. NS fled Thailand and obtained political asylum in France. A series of complex renegotiations of the commercial arrangements between WEH, REC and SCB followed, in which the bank was anxious to ensure that NS no longer controlled WEH or REC. The claimants issued proceedings in England, alleging that REC had been unlawfully deprived of its shares in WEH. Proceedings were later brought in Thailand by some of the claimants against some of the defendants, but – significantly, for the purpose of the present application - SCB was not a party to the Thai proceedings.
WEH obtained disclosure of certain documents belonging to SCB in Thailand. The documents were covered by SCB's legal professional privilege and/or contained SCB's confidential information. The claimants in the English proceedings obtained copies of the documents from WEH pursuant to subpoenas granted in Thailand. SCB applied to the High Court for an order prohibiting their use in the English proceedings.
Legal argument
SCB argued that for the purposes of the English proceedings, whether or not the documents were privileged was a matter of English law as the lex fori. It further maintained that SCB's provision of the documents to WEH in Thailand and the subsequent dissemination of the documents by WEH to the claimants pursuant to the Thai subpoenas did not mean that privilege was lost because to conclude otherwise would circumvent and defeat the public policy on which English legal professional privilege depends.
The claimants submitted that the documents were no longer privileged or confidential as between the claimants and SCB because (i) the claimants held copies of the documents lawfully pursuant to the Thai subpoenas; (ii) the documents had been circulated by SCB to other parties including several of the defendants and their contents were therefore no longer confidential; and (iii) the documents fell within the iniquity exemption. (For an explanation of this exception to legal professional privilege, see our article on the recent case of Candey v Bosheh here.)
English law, as the lex fori, will determine the question of whether privilege has been lost
The Court confirmed, following a line of cases which ran back to the nineteenth century, that the question of whether the documents fell within the scope of legal professional privilege was a matter of English law, as the lex fori. It was plain that the majority of the documents (comprising principally a legal opinion and various documents referenced therein) were covered by legal professional privilege.
What was the effect on the English proceedings of the Thai subpoenas?
The next issue to consider was the effect of the lawful release of the documents to the Claimants pursuant to the Thai subpoenas (which as a matter of Thai law imposed no restriction on their use). The Court held, following Rochester Resources Limited v Lebedev [2014] EWHC 2185 (Comm) (which itself followed Bourns Inc v Raychem Corp [1999] 3 All ER 154), that "the fact that under foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. The crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use. If it is, then privilege in this country can be claimed and that claim, if properly made, will be enforced." The fact that the Thai courts had determined the documents not to be privileged did not prevent the English court determining that they retained their privilege in England.
What does "properly available for use" mean?
In Lebedev, Blair J appeared to have interpreted "properly available for use" to mean that in order to have lost the quality of confidentiality, the documents had to have entered the public domain; it was common ground in the present case that they had not. However, Pelling J considered that the test was broader and less clear-cut; per the decision in Bourns Inc, the question was whether a document "remain[ed] confidential in the sense that it is not properly available for use". This meant that the issue of loss of confidentiality had to be considered in detail, in order to conclude whether or not confidentiality – and thus privilege – had been lost.
Is loss of confidentiality – as it relates to loss of privilege – to be determined by the lex fori?
The question of subsequent loss of confidentiality and thus privilege (as distinct from the question of whether the documents had originally been privileged) led on to a conflict of laws question as to which country's law of confidence should be applied, Thai law or (as retained EU legislation) Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations ("Rome II").
Pelling J considered that it would be entirely artificial for the question of the existence of legal professional privilege – a creature of English public policy – to be resolved by reference to another system of law which determines the continued existence of the confidence requisite for the existence of the English privilege. For this reason, where a question of privilege arises, only the lex fori should be considered (and if this was wrong, Rome II permitted member states to depart from its principles where exceptions based on public policy were in play.)
Applying English law, Pelling J considered that confidentiality had not been lost simply by reason of the documents having been disclosed to the claimants by WEH pursuant to the Thai subpoenas. The documents belonged to SCB, which had provided them to WEH in circumstances of implied confidence. SCB was not party to the Thai proceedings and had been given no notice of the subpoena application (and therefore no opportunity to apply for an injunction to prevent disclosure of its confidential documents). Where the loss of English legal professional privilege is at stake, the courts should be very slow to conclude that the necessary level of confidence has been lost in circumstances such as these. It was also relevant that it appeared very likely that the claimants had been able to identify the documents they sought pursuant to the Thai subpoenas through their legal team's knowledge of their existence, which arose outside the scope of their engagement by the claimants. The disclosure of the documents by SCB to various of the defendants did not defeat the claim for privilege because it was clear that the documents were confidential in nature and had also been disclosed in circumstances which - in some cases explicitly and in others implicitly - made their confidentiality apparent.
The iniquity exception
Much of the judgment on the iniquity exception is redacted, but the court's conclusion was that, notwithstanding their allegation that SCB had sought the legal opinion in furtherance of an unlawful conspiracy to defeat the interests of creditors, the claimants had not come close to satisfying the test for iniquity in circumstances where the senior management of a bank had sought legal advice in relation to a particular concern.
Conclusion
This decision confirms that documents obtained lawfully abroad in circumstances where the foreign court does not consider them to be privileged will not necessarily lose the protection of privilege for the purpose of English proceedings. It takes a highly purposive approach to conflict of laws on the question of which country's law of confidence should apply, determining that it would defeat English public policy to apply the law of a second country to the question of confidentiality when that issue arises in the context of English legal professional privilege.
