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July 10, 2014
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
Judgment
Sir David Eady:
The Claimant has been given permission for anonymity by order of Kenneth Parker J dated 20 May 2014. It is a corporate entity which provides services to the UK and other governments. It now seeks an order requiring the Respondents, identified for the moment only as D & Co, to disclose the name of the Defendant, who is a former client. He is the author of at least two blogs in which confidential information was published. The Claimant has reason to believe that he may well be a current or past employee. That is based not only upon the nature of the confidential information he has apparently disclosed, but also on the terms of a unilateral undertaking he gave on 8 May 2014. On that occasion, on the day upon which he withdrew instructions from the Respondents, he undertook that he did not hold any confidential information other than “in connection with any employment relationship”. That is effectively a half-admission that he retains some such information obtained while in employment with the Claimant.
The Claimant wishes to obtain the Defendant’s identity in order to make an assessment of the risks which he posed, and may continue to pose, so far as other confidential information is concerned. That is a matter of protecting not only their own interests but also those of clients. Furthermore, the Defendant is in breach of an order made by Wilkie J dated 11 April 2014, whereby he was required to provide confirmation on oath that all domain names and email addresses used in connection with the relevant blogs had been transferred to the Claimant, or deleted, and that all materials containing confidential information held by him have been delivered up. He has not complied with that order, and another reason for obtaining his identity is that the Claimant wishes to take steps to enforce it. It is true that the Defendant has sought to provide some assurance by means of the unilateral undertaking to which I have referred, since he stated that he wished unilaterally to demonstrate his intentions for the present and future and undertook that he would not, whether directly or indirectly:
“(i) misuse the Claimant’s confidential information in any way;
directly or indirectly encourage any other person to terminate or seek to vary any contractual or employment relationship with the company or authorise, direct, assist or cause or procure or enable any other person to do any of the above”.
He also undertook, as I have said, that any confident
AI Generated Summary
Sir David Eady considered an application by an anonymised corporate entity that provides services to the UK and other governments seeking an order compelling D & Co, solicitors who formerly acted for a pseudonymous blogger, to disclose their client’s identity. The Defendant published the Claimant’s confidential information on two blogs, is suspected of being a present or former employee, breached Wilkie J’s order to transfer or delete related domains and deliver up confidential materials, and after withdrawing instructions gave a unilateral undertaking not to misuse confidential information. Drawing on Henderson J’s guidance in Solodchenko, Lord Bingham CJ’s analysis in Rogers, and Teare J’s approach in Ablyazov, the court held that the identity information was communicated in confidence solely for obtaining legal advice and thus was protected by legal professional privilege. Even if privilege did not apply, settled practice and the duty of confidence weighed against disclosure. Balancing enforcement and risk concerns—given the blogs’ dormancy and the undertaking—the court refused relief and dismissed the application.