communications, including any legally privileged material, and accept that the
Respondents are entitled neither to confirm nor deny whether any such interception
has taken place.
8. By the time the application was heard the Respondents had agreed to give certain
undertakings designed to protect the legal privilege of the Claimants in their
communications, if any such communications had been intercepted. It is important to
note that those undertakings were offered without making any admission that there
is any strong likelihood that such communications had been or were being
intercepted, and neither confirming nor denying that any such interception had
taken place.
9. The undertakings offered were acceptable to the Claimants save in respect of
paragraph 6 which reads:
“If and to the extent that, having conducted the steps described in paragraphs 1 and 2 above,
the Respondents reasonably assess that any lawyer instructed in or policy official working on
Belhadj & Boudchar v Straw & ors (HQ12X02603) has read or listened to any of the
Complainants’ legally privileged material, the Respondents will inform the Investigatory
Powers Tribunal in CLOSED of that fact and seek the Tribunal’s directions in CLOSED in
relation to it”
10. This outstanding issue as to interim relief, as it emerged in the skeleton arguments
and in the course of the hearing, concerns the legal principles which the Tribunal
should apply if it should appear that any legally privileged material has been
communicated to any lawyer or policy official instructed in or working on the civil
claim, so that it becomes necessary for the Respondents to apply in a closed hearing
for directions as to what steps should be taken to protect the legal privilege. Those
steps could include the grant of an injunction to prevent any use of the privileged
material, or to restrain the solicitor or official from continuing to be involved in the
defence of the civil claim. The Claimants were prepared to accept the undertakings
containing paragraph 6 as offered, but only on the basis that the legal principles
which the Tribunal should apply were clear, and that it was not contended by the
Respondents that any provision of RIPA, or any other relevant statute, prevented the
Tribunal in this particular context from applying those principles.
11. In the course of argument it became clear that the parties were agreed as to the
common law or equitable principles that should be applied to the protection of
legally privileged material which has come into the possession of another party.
Those principles are reflected most recently in the decision of Beatson J in Stiedl v
Enyo Law [2011] EWHC 2649 (Comm). That case concerned a claim against solicitors
who had for the purpose of litigation reviewed documents belonging to the claimant
which were legally privileged. In summary that judgment requires a court first to
consider whether there is a real risk that privileged information may give an
advantage to the solicitor, or a disadvantage to the owner of the privileged