A Pinsent Masons lawyer, Stuart McNeill, unknowingly had "privileged and confidential" conversations secretly recorded when a client's office was bugged by a businessman.
McNeill and a client Adrian Kennedy were unaware that their private legal conversations were recorded by John Kelly, who bugged Kennedy's office for a couple of months. Kennedy is an in-house lawyer at DSM SFG Group Holdings, a demolition company that had bought interests in various businesses owned by Kelly and other family members in 2017.
Kelly claimed he was worried that something was wrong with the deal, according to a recent Court of Appeal Judgement. In 2018 he "instructed and was assisted" by a retired police officer to covertly place recording devices at DSM SFG's premises and "in particular the office of Mr Kennedy". Between October and December 2018, Kelly recorded around 40 hours of conversations, including privileged and confidential conversations between Kennedy and McNeill.
McNeill didn't notice anything unusual
DSM SFG discovered the recording devices and sought an injunction against Kelly, who offered undertakings not to use the recordings except for defending claims by DSM SFG. But Kelly later applied to amend the undertakings so that he could use the recording for any counterclaim or related action against the demolition business. In July 2019, Mr Justice Murray found in Kelly's favour to allow him to vary his undertakings accordingly.
DSM SFG appealed. In its recent judgment, the Court of Appeal reversed Mr Justice Murray's ruling, saying that "with all respect to the judge" his decision was "plainly wrong". Court of Appeal judge Lord Justice Davis said that Kelly must not be released from his original undertakings, as to do so would permit him "to make use of covertly obtained confidential information to his own perceived advantage”.
A spokeswoman for Pinsent Masons said “the case is subject to further proceedings therefore it would be inappropriate for us to comment.”
Incidentally, Pinsents had previously briefed the media some time ago on covert recording, highlighting legal grey areas:
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Anyone bugging my office would hear the following:
(1) trainees boring about yoga at lunchtime;
(2) senior associates complaining about their children / lack of sleep;
(3) secretaries discussing last nights soap operas;
(4) legal support moaning about fee earner requests; and
(5) partners trying to masquerade as managers.
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I'm pretty sure there's something in the CPR or similar which prevents material obtained from covert recordings being used in court - especially if that material is privileged. Mad decision by the judge correctly overturned by the CoA.