Putting on the writs! Barclays square up to each other in court

Born ten minutes apart in Hammersmith 85 years ago, the reclusive Sark (or rather, Brecqhou)-based billionaire Barclay brothers have not done badly for themselves. Starting out as painters and decorators before progressing to running a sweet shop, they were made bankrupt in 1960. They then paid off their creditors before getting into property. The rest, as they say, is history. Their business interests now span shipping, retail and newspapers as well as, at least until recently, The Ritz Hotel in London. Their Scottish travelling salesman father, who passed away when they were 12, would no doubt have been very proud of them. Rather oddly, the headstone on their father’s grave in Mortlake Cemetery has Sir David’s name on it but not Sir Frederick’s. No doubt that is another story.

The twins are no strangers to the law, having pursued legal action to The Supreme Court to challenge Sark’s then feudal system of government and invoking the European Convention on Human Rights to challenge Sark’s then feudal system of primo geniture inheritance laws. It has, however, come as something of a shock to see how things have unfolded for them in court recently.

On 13 January 2020, Sir Frederick and his daughter Amanda discovered evidence that three of Sir David’s sons and one of Sir David’s grandsons were parties to a scheme to make covert recordings of conversations between Sir Frederick and Amanda in the conservatory of The Ritz Hotel. Not just any old scheme but one described by Sir Frederick’s legal team as “commercial espionage on a vast scale”. The recordings captured over 1,000 separate conversations over a period of months, running to 94 hours of audio recordings capturing private, confidential, personal and legally privileged conversations with their lawyers, trustees, bankers and business people. Sir David is not one of the defendants.

On 30 January 2020, Sir Frederick and Amanda issued legal proceedings in respect of alleged infringements of their rights of confidentiality and privacy.

At court hearings on 18 and 19 February 2020, the defendants’ legal team resisted handing over items, claiming legal professional privilege in them. The Judge, Mr Justice Warby (who is the Judge in charge of the High Court’s Media and Communications List), was clearly not overly impressed with this argument, describing it as being “at the margins of what is fanciful”, “flimsy evidentially, legally ambitious and … on the face of it weak, legally and factually”. He nevertheless allowed the defendants’ legal team more time to make an informed decision on the issue.

As part of this process, the independent solicitor supervising the execution of the process had to carry out a sifting process to listen to the audio recordings, exclude third-party conversations and sift out confidential and legally privileged information. As the Judge noted, “That, naturally enough, was also a very expensive process.” £565,525.80 including VAT, to be precise. It must have been tempting for the Judge to accept Sir Frederick’s counsel’s invitation to punish the defendants in costs by ordering them to pay the claimants’ costs on the (generally higher) “indemnity” basis as opposed to the usual “standard” basis. The Judge resisted the temptation to throw the book at the defendants costs-wise, instead ordering the defendants to “only” pay £242,023.30 of the costs claimed for the sifting exercise and parking the question regarding who should bear the £323,502.50 cost of transcribing the covert recordings.

Quite where that leaves things between the Barclays remains to be seen. On 18 May 2020, however, Sir Frederick released CCTV footage which allegedly shows his nephew handling a bugging device at The Ritz, saying: “The decision to release this video of this deliberate and premeditated invasion of my privacy is in the public interest. I do not want anyone else to go through the awful experience of having their personal and private conversations listened to by scores of strangers.”

On 22 May 2020, two of Sir Frederick’s nephews upped the stakes by issuing their first public statement since the case began. In their statement, they say that Sir Frederick “has for some time been conducting uninformed conversations with a range of third parties about sensitive commercial matters”. One might wonder quite how they know that. Sir Fredrick responded by saying that he found the statement “baffling”.

The costs involved in this dispute are clearly very substantial indeed. Setting them against the grim backdrop of the current global pandemic puts them into particularly stark relief. The laws of privacy and breach of confidence have come a long way in recent years. If this case is anything to go by, however, they still might have some way to go. The irony of a press baron relying on the law of privacy will surely not be lost on some. Sir Frederick might, however, be just the person to push back the boundaries here. As a result and as with the pandemic, let us hope that even this cloud might have a silver lining.