CL-2024-000450 - [2025] EWHC 2968 (Comm)

Does the claimants’ unethical behaviour involve or constitute an abuse of process?

In light of my findings set out above, the answer to this question is in the affirmative as regards actual or accrued abuse of process. I deal separately below with the forward-looking position.

As regards the accrued position, I am satisfied to the requisite standard that the claimants engaged in abusive conduct by seeking or attempting to obtain confidential information from their adversary’s litigation solicitor as occurred. This is so irrespective of the precise evidential status of any material obtained by such unethical process, including whether privilege in any information is on proper analysis precluded by the iniquity principle.

Put bluntly, this is something that should not happen and it cannot be countenanced by the Court. The use of unethical methods to target an adversary’s solicitor in the hope of extracting sensitive information or insights from them is anathema to the norms and values of civil litigation. It is cheating the system with a view to undermining the level playing field which the Court strives to maintain between opposing parties. It offends justice.

What took place in the present case is different in kind from the evidence-gathering techniques deployed by BC as discussed by Morgan J in Benkel v. East-West German Real Estate Holding & others [2021] EWHC 777 (Ch) at [140]-[161]. The lawyer targeted for a human intelligence by BC in that case, Mr Rese, was a transactional lawyer said to have assisted in creating sham legal structures which were the subject of the substantive proceedings brought by a trustee-in-bankruptcy. The fact that such evidence was admitted and relied upon by Morgan J does not set a precedent as to admissibility of any of the illicit information in the present case, but that is a matter for another day.

I am satisfied to the requisite standard that the claimants are legally responsible for and complicit in this unethical conduct (see paragraphs 21 to 25 above). They bought the product. They own the process. This is not a substantive legal analysis about the law of agency or doctrines of attribution or vicarious liability; cf. paragraph 24 above. It is a conclusion expressed pursuant to the Court’s inherent jurisdiction to regulate and protect the use of its own constitutional function.

The claimants’ abuse was compounded by their receipt of the illicit information, their review and retention of it as illicit knowledge, their new solicitors’ review and retention of it extraneous (and perhaps contrary) to any applicable procedural scheme or regulatory framework, and the uses made of such illicit knowledge to date as summarised in paragraph 34 above. The fact that these later steps were done on the basis of legal advice from their new solicitors, having satisfied themselves (correctly or otherwise) that any privilege was lost or precluded by iniquity, does not alter the essential characterisation of the claimants’ conduct. It may factor into the appropriate response of the Court, but it doesn’t change the fact that a serious transgression has occurred.

As regards the suggestion that any confidentiality was lost by X’s disclosure to BCO, I reject that submission. X was deceived from start to finish. He was lulled into a false sense of confidence and candour through unethical deception and manipulation. BC’s receipt or onward transmission of information could not destroy its confidential character. Nor on the face of things can it be said that X waived any privilege belonging to his clients by divulging what he did and how he did it during that sting operation. X had no authority to waive his clients’ privilege. The claimants’ contrary suggestions are unconscionable.

The fact that there should have been a nil return, to quote the claimants’ forensic mantra, does not alter this characterisation of their behaviour. It may be the case that X is guilty of serious professional misconduct, but only because of the deception and manipulation to which he was subjected by the claimants: see paragraph 28 above.

As regards the forward-looking position, including the second limb of the cross-application and any anticipatory abuse of process, this turns on the extent to which the illicit information is confidential and/or privileged: see Issue (2) below. Whilst the claimants can be restrained from making use of such information, and have given an interim undertaking to this effect pending resolution of the cross-applications, they cannot have their illicit knowledge erased or reversed. There is no way of policing its invidious or invisible influence upon their litigation or settlement strategy day in day out.