Prince Charles’s letters to government prompt a timely reminder on disclosure
In North Wales in 1399, the Earl of Salisbury sought to rally the Welsh supporters of King Richard II, still then in Ireland, against the recent revolt by arriviste Henry Bolingbroke. Shakespeare has the Earl addressing the Welsh captain thus: “Stay yet another day, thou trusty Welshman: The king reposeth all his confidence in thee.” The confidence was not returned; the king was ambushed, imprisoned, abdicated and died; and the rest is history.
A different kind of confidence between the monarch (strictly speaking, her heir, the Prince of Wales) and a favoured subject has just been considered by the Supreme Court. In Evans v Attorney General [2015] UKSC 21, a majority of the court held that certain private and confidential letters written by the Prince of Wales to government ministers between September 2004 and March 2005 should have been disclosed, following an application made pursuant to the Freedom of Information Act 2000. That Act originally contained a qualified exemption in relation to communications with the sovereign and other members of the royal family; it also exempts information which, if disclosed, “would constitute an actionable breach of confidence”. Although that is an absolute exemption, public interest in disclosure is normally a defence to a claim for breach of confidence.
The result in the Supreme Court, which was based on widely divergent reasoning, is being trumpeted as a vindication of the public interest in transparency in government. However, its effect is limited as a result of the amendment of the 2000 Act by the Constitutional Reform and Governance Act 2010, which now grants absolute immunity from disclosure in relation to communications with the sovereign, the heir to the throne, and the next in line. Thus one great constitutional force – the public interest – has been overcome by another: parliamentary sovereignty. Prince Charles may now therefore be confident that his further letters to ministers may not be disclosed against his will under any circumstances.
Confidentiality in property law
So what does all this have to do with property practitioners?
The decision of the Supreme Court usefully reminds us that, where duties of confidentiality are concerned, there are two major public interests to be balanced. One is the public interest in upholding confidentiality agreements, like any other contract. The other is the interests of justice, which are not served where the confidentiality prevents the emergence of material that would be relevant in resolving a dispute.
Take the obvious example of a leasehold valuation dispute, where the landlord owns much of the comparable property, but refuses to reveal the details because of confidentiality agreements with its other tenants. As a result, although the landlord is aware of rental values, and can pick and choose on which comparables it wishes to rely (usually irrespective of its own obligations of confidentiality), its tenant is in an invidious position.
The tenant’s recourse will depend in part on whether the dispute is being processed by litigation or arbitration. In the sphere of litigation, no party can resist disclosure of information on the basis solely that it is “confidential” – a rule that has received the support of the House of Lords in an employment law and discrimination context (although capable of application on a wider basis as a matter of principle): see Science Research Council v Nassé [1980] AC 1028. The issues for the court were, first, whether there was in relation to confidential documents any immunity from disclosure; and second, if not, how should a tribunal exercise its discretion as to disclosure in relation to those confidential documents?
The answer to the first question that was given by Lord Wilberforce was that there is no principle in English law by which documents are protected from disclosure by reason of confidentiality alone. Secondly, however, he said that there was no reason why, in the exercise of its discretion to order disclosure, the tribunal should not have regard to the fact that documents are confidential; and that to order disclosure would involve a breach of confidence. He added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering disclosure. The tribunal always has a discretion.
Translating Lord Wilberforce’s remarks from an employment law to a property law context, in deciding how to exercise that discretion, the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties may be affected by disclosure, to the interest which both landlords and tenants may have in preserving the confidentiality of their commercial affairs, and to any wider interest which may exist in preserving the confidentiality of rental records. It is unlikely, however, that any of this would cut much ice in a property context. Mrs Nassé was trying to obtain disclosure of personal assessments of other employees of the Science Research Council, and it is understandable how substantial sensitivities were engaged in that context. It is difficult to see how any particular sensitivity might arise in relation to rental records.
Property authorities and comparables
There are few authorities that illustrate how this balance may be achieved in property cases. Perhaps the most well-known is the decision of Gross J in South Tyneside Borough Council v Wickes Building Supplies Ltd [2004] EWHC 2428 Comm; [2014] PLSCS 254. Unusually, the parties, who were landlord and tenant engaged in a rent review arbitration, agreed that the landlord should issue a witness summons seeking disclosure of the details of a confidential transaction involving third parties. The judge set aside the summons, finding that, although the confidential transaction was relevant (even though its details would not be available on the open market), other adequate comparables and materials were available to the parties, and that confidentiality was a factor entitled to very considerable weight in the circumstances.
Where the comparables consist of arbitration awards, moreover, then an additional competing interest must be weighed in the balance: the confidentiality that automatically attaches to the arbitral process. Disclosure in such circumstances will require cogent justification before being ordered – although the exercise should be more likely to succeed than any future attempt to obtain Prince Charles’s correspondence.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
