Introduction to privilege and confidentiality

September 2007

47.2 Privilege

Privilege is the right, in certain circumstances, to withhold information or material, and has been described as:

‘That which is granted or allowed to any persons, against or beyond the course of ordinary law.’

A person, whether or not a party to proceedings, is entitled to claim that privilege attaches to certain information or material. The forms of privilege which official receivers are most likely to come across are:

Legal professional privilege, (the subject of chapter 64).

The privilege against self incrimination (see paragraph 47.3),

Public interest immunity (see paragraph 47.4).

Privilege may be expressly or impliedly waived by the person entitled to claim it. Involuntary disclosure under a court order is not a waiver of privilege.

Copies of any privileged documents are also privileged. Re Fuld (No. 2), Hartley v Fuld [1965] P405. Where a privileged document is inadvertently disclosed during the course of proceedings the document may only be used in evidence with the permission of the court.

Notes: [CPR 1998, part 31.20]


47.3 The privilege against self incrimination

The privilege against self incrimination is a bulwark of the common law, into which legislation has made only a few, selective inroads, (see paragraph 47.58).

A person, whether or not a party to proceedings, is entitled to assert that he/she should not answer a question or produce a document, if to do so would tend to incriminate him/her.

The privilege against self incrimination in civil proceedings is subject to section 14 of the Civil Evidence Act 1968, which limits the privilege to criminal offences and penalties under the laws of the United Kingdom. That has been held to include EU legislation forming part of the laws of the United Kingdom by virtue of the European Communities Act 1972.

A bankrupt/director cannot rely on the privilege against self incrimination to avoid providing the official receiver with information regarding his/her own or a company's cause of failure e.g. at public or private examination, (Bishopsgate Investment Management Ltd (in provisional liquidation) v Maxwell [1993] Ch 1; [1992] BCC 222), but see paragraph 47.58.

The privilege extends to the spouse of the person claiming the privilege, but not to any other person.

Once the risk of prosecution ceases, so does the right to claim the privilege.


47.4 Public interest immunity

Public interest immunity (which used also to be called Crown privilege) is the law of public confidentiality i.e. the law governing the protection of information, which, if disclosed, would damage the public interest. In R v Chief Constable of West Midlands, ex p Wiley [1994] 3 WLR 433 it was said:

‘Public interest immunity is a ground for refusing to disclose a document which is relevant and material to the determination of issues involved in civil or criminal proceedings. A claim to public interest immunity can only be justified if the public interest in preserving the confidentiality of the document outweighs the public interest in securing justice’.

Article 8(1) of the European Convention of Human Rights provides that: 'Everyone has the right to respect for his private and family life, his home and his correspondence.'

Article 8(2) states:

‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others.’

Only rarely would the official receiver ever wish to make a claim of privilege on the grounds of public interest immunity.


47.5 Privilege and confidentiality distinguished

As described at paragraph 47.2, privilege is a right. Confidentiality is a duty, recognised by the law, owed by one person to another.


47.6 Disclosure and confidentiality

The law protects, through statute and common law, a wide range of confidential information and material.

In the Court of Appeal’s judgment in W v Egdell [1990] 1 ALL ER 835 it was said that the court would restrain disclosure of information where:

  • the information was confidential in nature and not a matter of public knowledge; and
  • the information was entrusted to another person in circumstances which imposed an obligation on that person not to use or disclose the information without the consent of the party giving the information; and
  • it is in the public interest to protect the confidentiality of the information.

To be confidential, information must be 'serious' in the context in which it was imparted, and must be more than trivial, at least to the party whose confidence has been or might be breached.

The courts will allow a breach of confidence only if it is in the public interest. In each case a balancing exercise is carried out as to whether the public interest is better served by disclosure or in keeping the information confidential.

It is commonly thought that confidentiality is an all or nothing concept, and that particular material is either confidential or not. This is not the case. The court can allow limited disclosure e.g. to an investigating authority, on an undertaking to use it in a particular way. The investigation may enable the court, on a later review, to rule on any subsequent disclosure issues.

Much of the information the official receiver may be requested to disclose will be confidential (e.g. the preliminary information questionnaires and narrative statements). In deciding whether to disclose confidential information, the official receiver has to judge where the public interest balance lies, and may consider consulting Technical Section.

During the course of court proceedings the official receiver should inform the court if he/she considers certain information to be confidential. It is for the court to decide whether or not that information should be disclosed. (See later paragraphs 47.18 - 47.19).


[Back to Introduction] [On to Part 2 - Civil proceedings]