Hacking and lawyers: privilege again…

James Harding, editor of the Times apologised today to the Leveson inquiry for not disclosing information to Mr Justice Eady, in a 2009 injunction application, that would have confirmed a journalist at his paper had hacked into an email account.  In particular, the Guardian report that the Times did not disclose to the court that the reporter had told his managers before publication that he had hacked into Horton’s [an anonymous police officer blogger] emails.  He makes some pretty incendiary allegations against the then Times inhouse lawyer, Alistair Brett including (it seems) an insinuation that Mr Brett may have contributed to the misleading of a High Court judge and a suggestion that he was acting without instructions (although he does not quite go as far as saying that Brett did not have authority to act).  I want to focus briefly on one point of particular interest quoted in the Guardian story:

  1.  “In one email Foster asked for more time on the story, to put a “little space between the dirty deed and publishing” the article that unmasked the blogger.” 

It is reported by Mr Harding that, “he understood Mr Brett told Linklaters he decided not to inform the Times counsel at the time or the court about the issue “because he took the view that the information provided to him” was “confidential and privileged” and that it would “incriminate” Foster.”

On the facts as we know them, I have reservations about that analysis.  Advice will be subject to legal professional privilege if it is a communication made for the purpose primarily of receiving legal advice.  It is not clear to whom the email is addressed but Foster’s email seems to be made for the purpose of gaining some time from an editor not for getting legal advice.  We need to know more about the email to judge, but routing the email through a legal department will not, for instance, be enough in itself.  Nor can it be claimed, on the face of it, that the email is subject to litigation privilege. It does not appear to be an email prepared as part of the preparation for litigation.  The claim that releasing the email may incriminate Foster is an interesting one: the logic would be that corporations must conceal evidence of wrongdoing by their employees to avoid the employee’s incrimination.  Oh, and their own.   More fundamentally there is the allegation that this failure to disclose has led to, or not prevented, Counsel for the Times misleading Eady J.  Information provided for advice on a fraudulent purpose (the misleading of a court) is also not covered by privilege.

It should be emphasised as ever that we do not know all the facts and, in particular, we have not heard Alistair Brett’s side of the story.  One thing we can be reasonably sure of, I think.  Mr Brett need not feel too restrained by lawyer client privilege, at least not for long.  The Times will very likely be implied to have waived that in making the extraordinary allegations against him.   No doubt they will also be asked to waive privilege just to make the position clear.  

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