Shepherd v. Fox Williams LLP
[2014] EWHC 1224 (QB)
In the High Court of Justice, Queen’s Bench Division
Case Number IHQ/14/0135
Before Justice Simler DBE
Decided on April 16, 2014

Relevancy of the case: Application for summary judgment directing the defendant to destroy and deliver privileged information from its servers

Statutes and Provisions Involved

• The European Convention on Human Rights 1950 (Article 8)

Relevant Facts of the Case

• In the instant case, the defendant was the employer of the claimant’s fiancé. The defendant dismissed the fiancé.
• Even after dismissal, the defendant possessed confidential information about the claimant’s financial statements, his and his son’s medical condition, and financial orders concerning his previous marriage divorce proceedings.
• The defendant accessed documents when the fiancé opened them on the company’s computer.
• The claimant applied for delivery and destruction of these privileged documents and demanded costs of action from the defendant.
• There is an agreement between the parties regarding the delivery and destruction of certain privileged documents. However, there persists a disagreement as to the award of costs.

Prominent Arguments by the Counsels

• The claimant’s counsel argued that the documents are privileged, and there is no question about waiver of this privilege. The claimant has already relieved the defendant of the cost of other additional documents even though they also incurred costs on these. The claimant submitted that the court should award costs in their favour.
• The defendant’s counsel submitted that:
  • The privilege was revoked when the claimant emailed the documents to the fiancé. The court should dismiss the application for summary judgment and order costs in their favour.
  • The claimant should have known that the company had policies that allowed access to employees’ emails, negating any expectation of privacy or confidentiality.
  • The defendant also contended that the documents were relevant to the employment tribunal proceedings. Therefore, the court should admit those documents.

Opinion of the Bench

• The privilege does not stop simply because the sender sent the documents to a third party, provided he sent the documents under circumstances preserving confidentiality.
• Legal professional privilege is a fundamental right. It could only be overridden in exceptional circumstances, which did not apply here.
• Documents retained their confidentiality and thus remained privileged despite being on the company’s server.

Final Decision

• The claimant succeeded in the action and application.

Nandita Karan Yadav, an undergraduate student at the National Law Institute University, Bhopal, and Prachi Chakravarty, an undergraduate student at University Law College, Bangalore University, prepared this case summary during their internship with The Cyber Blog India in May/June 2024.