UK: When Is It Permissible To Breach Confidentiality Obligations In The Public Interest?

Last Updated: 13 August 2019
Article by Chris Roberts, Daniel Cook and Stephen Moi

The English High Court has handed down its judgment in Saab v Dangate Consulting Ltd and others,1 finding that the Defendants, private investigators appointed to conduct an internal investigation at a bank, had breached their confidentiality obligations by disclosing material from their investigation to regulators. The Defendants had asserted a public interest defence, alleging they had come across evidence of criminality, and that the disclosures had been compelled by law, but the Court rejected these arguments. The decision provides a reminder of the various factors the Court will take into account in deciding whether a public interest defence should succeed against a claim for breach of confidence, and is timely given the increasing tension between businesses' duties to make disclosures to regulators and law enforcement authorities, and their obligations to safeguard certain categories of information pursuant to (for example) confidentiality and personal data obligations. This alert examines the key features of the Court's judgment. 


In July 2014, the US Financial Crimes Enforcement Network ("FinCen"), a US regulator, issued a Notice of Finding in respect of FBME (the "Bank") expressing concerns that the Bank may have been used to facilitate money laundering in Cyprus and Tanzania. Subsequently, the Central Bank of Cyprus ("CBC"), the regulator of the Bank's Cyprus branch, assumed the administration of the Cyprus branch. The owners of the Bank then engaged the Defendants, former police detectives specialising in corporate investigations, to investigate, although there was some subsequent disagreement regarding the scope and purpose of the investigation. Due to this disagreement and allegations regarding the Defendants' unpaid fees, the investigation was effectively brought to an end in November 2014. 

Notwithstanding strict confidentiality obligations surviving the termination of their retainer, the Defendants then provided materials from the investigation to several parties, including the CBC, FinCEN and other law enforcement agencies. Materially, the Defendants argued that they made the disclosures because they had come to the conclusion that the extent of the criminality being conducted through the Bank was so serious that it represented a threat, not only to the banking system, but to the safety and welfare of other people. They also argued that they had been acting under legal compulsion to assist the CBC after it had sent them a letter in April 2015 requesting information and documents.

Public interest defence

After considering the relevant legal authorities, the Court made the following observations in relation to the public interest defence.

  1. The policy underpinning the public interest defence is the so-called "defence of iniquity": a party cannot be entitled to make someone a "confidant of a crime or a fraud". A person must be able to disclose such information in order to maintain "the laws of the society".
  2. Accordingly, a balancing exercise is required to determine whether a breach of confidence may be justified by the public interest defence, as the protection of confidentiality is itself also a matter of public interest.
  3. In conducting the balancing exercise, it is necessary to consider the nature and extent of the duty of confidentiality, which will differ from case to case. Here, the parties had agreed strict confidentiality obligations under the Defendants' retainer, and the Defendants had therefore been bound by express duties under contract as well as general duties of confidence under the common law. In the circumstances, this means that "some greater weight should be given to that obligation of confidentiality", because where there are express contractual confidentiality obligations two distinct public policies are invoked: upholding freedom of contract as well as confidentiality.
  4. The Court found that the Defendants did not adequately assert a public interest defence covering the entirety of their disclosures, as they had not been selective but had merely supplied a "document dump" of materials. The Court stated that, had the Defendants selected and taken advice on the materials to disclose, there was "a real possibility that some part of the disclosure" could be justified pursuant to the public interest defence.
  5. Moreover, the Defendants needed to demonstrate that there was a "pressing need [for the public] to know" what was disclosed, and the disclosure "must have a focus, and a utility". Here, the public already knew the substance of the issues that the Defendants disclosed as that information had already been set out in the FinCEN Notice. All the Defendants did was add "granularity not substance" to what was already in the public domain. That the Bank was already in administration was another factor in determining that the public interest defence would fail, as there was no utility in disclosing information in such circumstances.
  6. Another important hurdle to overcome in order to raise a successful public interest defence is that there must be some evidence to justify the disclosure. Referring to Lord Goff's judgment in Attorney General v Guardian Newspapers (No 2)2, "...a mere allegation of iniquity is not of itself sufficient to justify disclosure in the public interest": the allegation needs to be a "credible allegation, from an apparently reliable source". In this regard, the Court also stated that it is insufficient to rely on an honestly held but unreasonable belief that disclosure is justified in the public interest. On the facts, in respect of most of the material, the conclusions of criminality reached by the Defendants were found to have been "premature and speculative", especially given that the investigation had never been completed. 

Compulsion of law

In relation to the separate defence of compulsion of law, the Defendants needed to show that they were under a legal duty to disclose information. The Court found that the CBC had not in fact sought to compel the Defendants' disclosures, given the language that it had used in its letter to the Defendants. The letter had stated that the CBC "requests that you forthwith provide" (emphasis added) documents and information, and had indicated that failure to do so "may" lead to an administrative fine and commission of an offence in Cyprus. The Court took this language at face value and considered that they were requests, not demands supported by legal authority. As such, the Defendants had not been acting under compulsion of law. 

Further thoughts

This case provides useful guidance on the balance between the public interest defence and obligations of confidentiality. The availability of the public interest defence is more limited than might be expected, especially where strict contractual obligations of confidentiality are owed. This decision is helpful in outlining some factors which a party may wish to consider prior to making a disclosure of confidential information it considers to be in the public interest, and demonstrates that there are certain steps a party may take to seek to ensure that a disclosure would be covered by the public interest defence, such as carefully delineating the scope of the disclosure and evaluating the sufficiency of the reasons and evidence to justify the disclosure in the public interest. 


1 [2019] EWHC 1558 (Comm)

2 [1990] 1 AC 109

Visit us at

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions