documents, in the civil claim (see paragraph 44), secondly to conduct a balancing
exercise taking into account all the relevant circumstances (see paragraph 43), and
then to consider the appropriate relief which may consist either of enjoining the
solicitor from acting in proceedings, or only from making any use of the privileged
documents (see paragraphs 39, 42 and 43). The judge accepted a distinction made in
the authorities between a case in which the privileged information had been acquired
by the solicitor whilst acting for the claimant and might be used against the claimant,
and a case in which the solicitor had not had a previous relationship with the
claimant. In the former case the court would in the ordinary course restrain the
solicitor from acting; in other cases the court would in the ordinary course only
prevent the solicitor from using the information (see paragraphs 39, 42 and 43).
12. At paragraph 38 of the Claimants’ skeleton argument it was submitted that:
��.. where “there is a real risk that information in the documents over which [the
litigant] claims privilege and confidentiality can be used so as to yield an advantage
… in the main proceedings” the Court will generally grant an injunction restraining
the persons involved from continuing to act.”
However in oral argument Dinah Rose QC for the Claimants made clear that it was
accepted that the form of the relief to be granted depended on all the circumstances,
applying the principles set out by Beatson J.
13. The real point of difference was the apparent reluctance of Mr. James Eadie QC for
the Respondents to accept that the principles to be applied by the Tribunal should be
limited to the common law and equitable principles reflected in the judgment in
Stiedl v Enyo. He submitted that the statutory framework was “not irrelevant” to
any determination that might need to be made by the Tribunal under paragraph 6 of
the undertakings, and that the Tribunal should take into account all the provisions of
RIPA and the Code of Practice set out in the Respondents’ Response. Given the
hypothetical nature of the issue, and the constraints imposed by the neither confirm
nor deny principle, it was difficult to follow whether this stance reflected any real
point which might make a difference to any decision which the Tribunal may be
called upon to make under paragraph 6 of the undertakings.
14. However in the course of his submissions Mr. Eadie made clear that he was
submitting first that all the relevant circumstances must include the circumstances in
which, and the statutory powers under which, any privileged material was obtained,
and secondly that he was not contending that there was any provision in RIPA, or in
any other applicable statute, which had the effect of overriding or regulating the
common law or equitable principles of law which applied to any application to
protect legally privileged information. In reply Miss Rose accepted that whether
there was a real risk was only the first question, and that the Tribunal would be
required to consider all the circumstances, but made the point that upon the basis of
Mr. Eadie’s concession it was difficult to see how the statutory framework could