Sohail Masood v Mohammad Zahoor (2008)
The right of all parties to a fair trial meant that it was appropriate to restrain the defendants from threatening any disciplinary proceedings against a United States lawyer which might inhibit or prevent him from being willing to give evidence in English proceedings in which they were involved.
The claimants (M) applied for an injunction to restrain the defendants (Z) from threatening or instituting disciplinary proceedings against a United States lawyer (X). The parties were engaged in litigation in which M proposed to adduce evidence from X, who had acted for Z for many years. It was Z's case that the evidence proposed to be given by X was the subject of legal professional privilege and a duty of confidence. Z had threatened disciplinary proceedings against X in the US in relation to his past and proposed future participation in the proceedings. X had expressed his reluctance to give evidence with the threat of possible disciplinary proceedings hanging over him. M submitted that (1) Z should be perpetually restrained from instituting disciplinary proceedings against X arising out of his involvement in the proceedings; (2) Z should also be restrained from objecting to the use of X's evidence.
Although Z had a legitimate right to protect their legal privilege and their confidence, the court had jurisdiction, where appropriate, to grant an injunction against something that might be an apprehended threat to the process of the fair hearing of the proceedings before it. It was essential that the litigation be conducted in such a way that, whatever the result, all parties were given a full opportunity to deploy the case as they wished, subject to questions of relevance and legal admissibility. It followed that it would be wrong for Z to do any act which might impinge upon that process as regards M. As a result, M would be granted a limited injunction for the duration of the trial to stop Z from threatening or taking any step in the US which might inhibit or prevent X from being willing to give evidence. (2) Although a prima facie case of privilege and confidence had been made out in respect of the evidence proposed to be given by X, in the absence of any witness statement from him it would not be possible until the trial to say whether or not any evidence that he wished to give was actually privileged or confidential, and whether there were any exceptions to either privilege or confidence which justified overriding those particular principles of protection for Z. In those circumstances, it was not appropriate to deal with the application to restrain Z from objecting at trial to the use of X's evidence.
Application granted in part
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13 Feb 2008
Peter Smith J
James Aldridge QC