Legal profession – Complaints – Confidentiality – Publication

(1) Michael Napier (2) Irwin Mitchell v Pressdram Ltd: CA (Civ Div) (Lords Justice Hughes, Toulson, Sullivan): 19 May 2009

The appellants, a solicitor (N) and his firm, appealed against a decision ([2009] EWHC 39 (QB)) refusing to grant an injunction preventing the respondent publisher (P) of a magazine from publishing information about the outcome of a complaint against them made to the Law Society and about a report regarding the Law Society’s handling of the complaint.

The complaint had been made by N’s former client. An adjudication panel of the Law Society made certain findings that were upheld by the appeal panel. The complainant then wrote to the Legal Services Ombudsman whose function and powers were later transferred to the Scottish Legal Complaints Commission. The commission issued an opinion about the way in which the Law Society had handled the complaint. The injunction was sought on the basis that the information in question was confidential. The judge held that there was no duty of confidentiality owed to the appellants by either the complainant or P and, therefore, the test for an interim restraint order under section 12(3) of the Human Rights Act 1998 was not satisfied. The appellants argued that the complainant was under an equitable obligation to treat the outcome of the Law Society investigation as confidential because the procedure that led to it was conducted on a private and confidential basis. They argued that the Law Society scheme for dealing with complaints presupposed that, and was unworkable unless, the entire proceedings and the outcome were treated by the parties and by the Law Society as confidential, and section 44D of the Solicitors Act 1974, which was not in force, presupposed that Law Society investigations had always been confidential, subject to the Law Society’s power to refer the matter to a public tribunal. The appellants further submitted that the provisions relating to the Legal Services Ombudsman in the Courts and Legal Services Act 1990 allowed very limited powers of publication to the ombudsman.

Held: (1) For a duty of confidentiality to be owed (other than under a contract or statute), the information in question had to be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential, Printers & Finishers Ltd v Holloway (No2) [1965] 1 WLR 1 Ch D applied. The subject matter underlying the adjudication was nothing private to N. The subject matter was the conduct of N 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 N to the Law Society. The critical issue was whether he was entitled also to reveal to others the fact that the Law Society found in his favour on part of his complaint. N had 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 could not 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 there was no other basis on which any reasonable person in his position would have regarded himself as being under such a duty.

(2) As regards the appellants’ first argument, many disciplinary inquiries were carried out in private without it being a necessary requirement that the result of the inquiry should be treated as confidential to the interested parties. The second argument was also rejected. There was no reason why the fact that either party might inform others of the outcome could impair the integrity of the Law Society investigation. The Solicitors Regulation Authority put forward its proposal routinely to publish any decision to reprimand a solicitor; it foresaw no impairment to the integrity of the process but, on the contrary, considered that public confidence would be increased in the solicitors’ profession and the way it was regulated. Further, there could be a legitimate reason for disclosing the outcome. The purpose of the Law Society scheme was not to protect the reputations of solicitors against whom adverse findings were made, but was to provide a proper means of regulating the profession and maintaining public confidence in it. The third argument based on sections 44D and 44E of the 1974 act was also rejected as those provisions were not in force at the relevant time. Also, publication of an adjudication by the Law Society authorised under the terms of section 44D would entitle the Law Society to claim at least qualified privilege, and it was understandable that parliament limited such publication. However, that had nothing to do with the publication by interested parties. In respect of the fourth point, it was tenuous to argue that it could be inferred from the limited publication powers of the ombudsman that the fact that the Law Society had made an adjudication against N was itself the subject of a duty of confidentiality owed by the complainant to N.

(3) It would be bizarre to restrain the identification of N and the firm referred to in the commission’s opinion in circumstances where the magazine was free to report the result of the Law Society investigation that formed the subject of the commission’s opinion.

Appeal dismissed.

James Price QC (instructed by Carter-Ruck) for the appellants; Heather Rogers QC, Anthony Hudson (instructed by Davenport Lyons) for the respondents.