Surveillance reports may not be privileged

Mrs and Mrs Gerrard brought claims for breaches of data protection law, misuse of private information, harassment and trespass arising from surveillance carried out on behalf of ENRC by Diligence International, an investigations company specialising in complex cross-border inquiries. The Gerrards sought to injunct ENRC from making any use of the information obtained by surveillance. The merits of the substantive claims are not considered here, but it is important to note that the attempt to strike out the harassment claim failed.

Of interest for the present purposes is that in its defence ENRC claimed the instructions provided to Diligence and the ensuing documents produced were for the dominant purpose of litigation and so subject to litigation privilege. The Gerrards challenged this, arguing that: the documents were generated as a result of iniquitous conduct, so that the iniquity exception to privilege applied; the documents generated by the surveillance could not be confidential in relation to them; and the documents were not generated for the dominant purpose of litigation. ENRC applied to strike out these claims.

The court decided that the time to answer these questions was after, not before, disclosure. The strikeout application was dismissed. However, it went on to make some interesting, non-binding, observations on whether the Gerrards’ arguments had no prospect of success.

• The allegations of harassment were clearly more than mere civil wrongdoing, since, if proved, they also amounted to a criminal offence, so could engage the iniquity principle. Diligence were also accused of lying to immigration authorities and using prohibited military-grade night-vision binoculars. Nonetheless the court also endorsed the case law pointing to “trickery, dishonesty, sharp practice, underhand or contrary to public policy” shy of criminal conduct being sufficient.
• On the question of confidentiality, although feeling that the statement from a leading textbook that “no privilege will attach to attendance notes or recordings or transcripts of conversations between the parties, or to video and audio tapes made by one party of the other party” may well be too sweeping, this was not sufficient to strike out the claim. So the argument that there is a lack of confidentiality between a person carrying out surveillance and the person they are following, where the surveillance operative is discovered, may work.

Comment

The iniquity principle stems from privilege being a form of confidence and it being a long-standing principle that there is no confidence in iniquity. Often the principle is raised where assets are hidden to put them beyond judgment. Lawyers have to think extremely carefully before advising in this context and may want to decline to do so, for fear of their advice not being privileged.

The court’s observations in this case are a warning to proceed with caution when (thinking about) conducting or instructing others to conduct covert surveillance in the context of civil litigation.

Further information

This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication.  If you wish to receive this publication, please contact Amy Edwards, amy.edwards@allenovery.com