BAE forced to disclose source of e-mail leaked from the solicitors representing anti-arms trade campaign organisation

04/03/2007

BAE is an arms manufacturer based in the UK. In December 2006, the applicant's parliamentary co-ordinator sent an e-mail to people on the applicant's steering committee internal e-mail list and a number of members of the applicant's staff. The email contained confidential privileged legal advice from its solicitors in connection with its strategy for proposed judicial review proceedings which the applicant intended to initiate against the government, and to which the respondent would be an interested party. The applicant sought to challenge the decision of the Serious Fraud Office to discontinue its investigation into alleged corruption and bribery on the part of the respondent in the securing of arms supply contracts from the Government of Saudi Arabia.

The e-mail was leaked to BAE, who passed it on to its own solicitors, who returned a copy of the e-mail to the applicant's solicitors stating that they (and BAE) had undertaken all reasonable efforts to destroy any paper or electronic copies of the email which they held. The e-mail redacted the names and addresses of the sources of the leak and BAE denied that it was under any duty to assist the applicant in any investigations it might wish to conduct as to the circumstances in which the email had been sent. The applicant sought Norwich Pharmacal relief to assist it to discover the source of the leak.

The Court noted the important submission by the applicant was that it could not "safely initiate proceedings unless and until the source of the leak to [BAE] is discovered and stopped. Otherwise it is said it can have no confidence that further leaks of its privileged or other confidential information may not occur whether to [BAE] or to the Defendant to the review proceedings themselves, namely the Government. Unless the leak has been stopped the applicant says it will be hampered in the obtaining and the discussing of full and frank legal advice. Further, since one of the obvious candidates for the leak is a member of the steering committee or staff, then absent the discovery and stopping of the leak, the whole basis of trust upon which the applicant organisation operates continues to be undermined which in itself inhibits the institution of the review proceedings."

The application was allowed.

Mr Justice King held that, in the circumstances, the evidence established the requirement of wrongdoing on the part of the person whose identity the applicant was seeking to discover, within the Norwich Pharmacal principles. Although it was accepted that BAE was an innocent third party, it had nonetheless become mixed up in the wrongdoing so as to facilitate the wrong. It could not be characterised as a mere bystander or witness. It had been the plan and purpose of the wrongdoer that confidential privileged information belonging to the applicant connected with its proposed judicial review application should be disclosed to a party with an interest in those proceedings adverse to that of the applicant, and who would thereby be enabled if it chose to use that information to the applicant's disadvantage and detriment. The requirement of disclosure sought by the applicant was a necessary and proportionate response in all the circumstances.

(Campaign against Arms Trade v BAE Systems plc [2007] EWHC 330 (QB) 26 February 2007)

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