In Suppipat and others v Siam Commercial Bank Public Company Ltd and others, it was held that certain documents obtained by the claimants (“Suppipat”) from a third-party Wind Energy Holding Company Limited (“WEH”), pursuant to subpoenas lawfully obtained from the Thai courts, remained privileged and therefore could not be used in the proceedings. In reaching its decision, the court provided useful guidance on the applicable law regarding issues of privilege and confidentiality, and the circumstances in which such protections might be waived or otherwise lost.
In connection with ongoing proceedings concerning an alleged fraud as part of which several parties including Siam Commercial Bank Public Company Limited (“SCB”) are said to have transferred shares in WEH at an undervalue to a series of shell companies and individuals, SCB applied for an order prohibiting Suppipat from using certain documents which Suppipat had obtained from WEH pursuant to subpoenas in Thailand.
Key takeaway 1: English law, as the lex fori, applies to the question of loss of privilege
Suppipat argued that Thai law should apply to the question of whether the privileged nature of the documents had been lost, since the documents were legitimately obtained pursuant to the Thai subpoenas.
However, this argument was rejected by the court. The court referred to Rochester Resources Ltd v Lebedev and Bourns Inc v Raychem Corp (“Bourns”) as authority that English law should determine whether there has been a loss of privilege. In this case, it was inconsequential that the Thai courts had decided that the documents were not privileged. Since Suppipat intended to rely on the documents in litigation in England, this was clearly not a matter for the Thai courts.
Key takeaway 2: the test for loss of privilege is determined by confidentiality
HHJ Pelling QC, sitting as judge in the High Court, cited Bourns as authority for the principle that, whether privilege had been lost is to be determined by establishing whether the document in question has retained its confidentiality. The judge found that the circumstances in which confidentiality can be lost are broader than just whether the documents have entered the public domain (though noting that if documents do enter the public domain, it is clear that any confidentiality is then lost), and that the “crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use” (emphasis added) which is “a question of mixed law and fact” (paragraph 33, judgment) . The test is whether a document has been obtained in circumstances which import an obligation of confidence (paragraph 53, judgment). If this is the case, the document is not properly available for use in English litigation.
Key takeaway 3: an obligation of confidentiality may arise even if documents are obtained innocently, by accident or through legitimate means
Suppipat argued that no obligation of confidence could arise in relation to the contested documents because they:
- “Received and [held] those documents lawfully, pursuant to an order of the Thai court which has not been challenged in Thailand; and
- Did not obtain those documents inadvertently, or through a trick but on the contrary obtained them lawfully as a result of a court order in Thailand without any constraint being placed on the use to which the documents so obtained could be put.”
Clear examples of when there is an obligation of confidence are where privileged material has been disclosed in error in the course of a disclosure exercise or a document has been obtained through illegitimate means. However, the judge emphasised that situations in which confidential information is obtained accidentally or unlawfully are not the only times in which equity should interfere; an obligation of confidence “may arise whenever a person comes into possession of obviously confidential information, or information known to be confidential” (paragraph 54, judgment).
The documents which WEH had received from SCB and provided to Suppipat in accordance with the Thai subpoenas had been sent on terms that made it clear that they were delivered in confidence. The documents were therefore obviously confidential. Accordingly, “[o]btaining documents that are obviously privileged by lawful means in a foreign state does not lead to the conclusion that as a result they have become available for use in litigation in England” (paragraph 57, judgment).
Key takeaway 4: the obligation of confidentiality cannot be circumvented by obtaining documents from a third party and without notice to the party entitled to assert privilege
SCB was not a party to the Thai proceedings and was not given prior notice of the application for the Thai subpoenas. Had SCB been aware of the application to the Thai courts, SCB could have sought an injunction to prevent Suppipat from applying for the material at all in Thailand or to prevent its use in future foreign proceedings, including the present English litigation. Accordingly, SCB’s entitlement to assert privilege or rely on the confidentiality of the material as against Suppipat should not be lost simply because Suppipat has circumvented SCB and obtained the documents through other means.