Must lawyers disclose a client’s whereabouts? – Yasin Patel
Introduction
The question of client-lawyer privilege and how far it extends is something that challenges legal minds everywhere. Lawyers are generally of the belief that what is discussed between them and their client(s) is confidential. That the client can be secure in that knowledge. So, when a court orders solicitors to disclose the details of a clients whereabouts including phone number, address and telephone number, what does the lawyer do? Are they obliged to do so, or do they fall within Legal Professional Privilege (“LPP”)?
And if the lawyer refuses, should they be criticised by the judge – or should they expect the judiciary to be scrupulous in protecting you from unjustified opprobrium?
This is a dilemma that a solicitor from Bark and Co faced and one that was considered by a High Court Judge.[1] Yasin Patel and Nahed Hadid consider this important case and the dilemmas faced when dealing with LPP matters.
Background
The defendant was one of six charged with conspiracy to import cocaine in an alleged £1bn importation. His trial was due to begin on 17 August 2026 and he had been on bail subject to stringent conditions, including:
- a residence requirement;
- surrender of his passport; and
- a prohibition on obtaining travel documents.
On 8 July 2025, he told his Solicitors, Bark and Co, that he had absconded and gone abroad. The solicitor, Ms Theivendrarajah sought advice regarding her position and obtained the defendant’s consent before notifying the court and the prosecution two days later that he had left the UK.
The court was later told that the defendant did not intend to return from Holland and expected to be tried in his absence, but continued instructing his Solicitors. On 18 May 2026, a warrant not backed for bail was issued by the Court.
At a hearing on 29 June 2026, the defendants surety provided the court with the defendants mobile number and work email address. Then, on 10 July 2026, HHJ Lockhart ordered the solicitors to disclose the contact details through which the defendant was communicating with his Solicitors, including his address, telephone numbers, email addresses and IP addresses. Bark and Co challenged the Disclosure Order (‘DO’) by Judicial Review, arguing that they were protected from providing the information ordered by the Court as the defendant was protected by LPP.
The Court’s Powers
For the court, the defendant had absconded, was abroad and was not intending to return for his trial. The question the court had to decide was how to get him to attend.
HHJ Lockhart considered that he had power to require Bark and Co to provide information that could assist in locating their client. He relied on the Crown Court’s general powers under s 45 of the Senior Courts Act 1981, together with its case management powers[2].
At the Appeal Hearing, Bennathan J questioned whether s 45 could support the DO. Referring to Re Trinity Mirror plc [2008] QB 770, he noted that,
- the power must relate to the proper dispatch of the business before the court, and
- the Bail Act 1976 already provides a specific statutory scheme addressing the consequences of a defendant’s failure to surrender to custody.
But the DO went further than the defendant’s whereabouts. It required Bark and Co to disclose the channels through which the defendant communicated with his Solicitors, including his address, telephone numbers, email addresses and IP addresses. HHJ Lockhart considered that these details were not protected by LPP. He also considered that the Criminal Procedure Rules had superseded earlier authorities concerning the conduct of business in the Crown Court and that his DO was not amenable to Judicial Review.
Can a Lawyer Withhold an Absent Client’s Whereabouts?
HHJ Lockhart’s criticism of Bark & Co was particularly scathing and in criticising them he described the Solicitors as complicit in a cover-up and suggested that the lawyers knew the defendant was not going to attend.
Bennathan J took a very different view of the Solicitors’ conduct. He considered Bark & Co’s actions to have been entirely proper. Faced with an unexpected situation caused by her client’s decision to abscond, Ms Theivendrarajah sought advice and, having obtained the defendant’s consent, notified the prosecution and the court within two days: the Learned Judge found no proper basis for that criticism.
A trial could still take place in the Defendant’s absence. The Lawyers could still assist in agreeing facts, the prosecution could seek to have the jury informed that the defendant had absconded, and an adverse inference under s 35 of the Criminal Justice and Public Order Act 1994 could potentially arise where the statutory conditions were met. The defendant could also be extradited.
More broadly, Bennathan J emphasised that Solicitors and Counsel who defend in the criminal courts play a vital constitutional role. They are entitled to expect the judiciary to be scrupulous in protecting them from unjustified opprobrium. He considered the suggestion that Bark & Co had acted disreputably, been complicit in a cover-up or facilitated the defendant’s conduct to be deeply unfortunate and completely unjustified.
Could Bark & Co Judicial Review the DO?
The first hurdle for Bark & Co was procedural: could they challenge HHJ Lockhart’s DO by Judicial Review?
There was, however, an immediate obstacle: s 29(3) of the Senior Courts Act 1981 limits the High Court’s supervisory jurisdiction in relation to certain matters concerning a trial on indictment. The question for Bennathan J was therefore whether the DO fell within that restriction.
This brought the focus to a crucial question: who was the DO actually made against? Was it a DO concerning the defendant and his criminal prosecution for the alleged cocaine-importation conspiracy, or was it a DO against the Solicitors requiring them to disclose their client’s contact details?
Bennathan J concluded that it did not fall within the restriction. The DO had been made against Bark & Co, who had been substituted as the Claimant, rather than against the Defendant. It was not an issue between the Crown and the defendant formulated by the indictment. There was also no ordinary route of appeal to the Court of Appeal (Criminal Division) available to Bark & Co in respect of the DO.
The indictment concerned the defendant’s alleged involvement in the cocaine-importation conspiracy; the DO concerned Bark & Co’s own obligation to disclose information held by the Solicitors. These were different issues. Accordingly, s 29(3) did not prevent Bark & Co from seeking Judicial Review because the DO was made against the Solicitors rather than the defendant. This allowed the High Court to consider whether HHJ Lockhart had acted lawfully in making the disclosure DO.
Where Does Legal Professional Privilege Begin – and End?
The fact that Bark & Co could challenge the DO was only the beginning. The gravaman was whether the Crown Court could require Solicitors to disclose how their client was communicating with them with all its details.
LPP is a fundamental protection. It is not something that a court can simply override. Without that protection, clients may be deterred from communicating freely with their lawyers and undermining the purpose of LPP.
Bennathan J began with the leading authority of R v Derby Magistrates’ Court, ex p B [1996] AC 487, in which the House of Lords underlined that, once LPP is established, it allows no exception. Lord Taylor CJ described it as a fundamental condition on which the administration of justice as a whole rests.
In the case of Bark & Co, the significance of the information lies not in the contact details themselves, but in their function: during ongoing proceedings, they are the current channel through which a client communicates confidentially with their Solicitor to obtain legal advice. In JSC BTA Bank v Solodchenko [2010] EWHC 2843 (Ch), disclosure of contact details was permitted because the proceedings for which the Solicitor had been advising had concluded. By contrast, in JSC BTA Bank v Ablyazov [2015] UKSC 64, disclosure was refused because the proceedings remained ongoing and the client continued to require communication with his Lawyers.
Bennathan J also distinguished R v Manchester Crown Court, ex p Rogers [1999] EWHC J0202-6 and R (Miller Gardner Solicitors) v Minshull Street Crown Court [2002] EWHC 3077 (Admin). Those cases concerned historic records of contact rather than a current channel through which the client continued to receive legal advice. In Bark & Co, the defendant remained represented and continued to instruct his Solicitors. His current means of communicating with them therefore fell within LPP.
Could the Criminal Procedure Rules Override Privilege?
There was a second obstacle to HHJ Lockhart’s approach. If the Criminal Procedure Rules permitted the court to seek this information, could they override the established law of LPP? HHJ Lockhart had considered that the Rules had statutory force and had superseded earlier authorities concerning the conduct of business in the Crown Court. Bennathan J rejected that approach. Referring to C [2010] EWCA Crim 2971, he made it clear that the Rules govern procedure; they do not change or abrogate substantive law and therefore cannot override LPP.
Is LPP Absolute?
The protection is not absolute. Bennathan J made clear that his decision protects the defendant’s means of communicating with his Solicitors during the currency of the litigation and presumably while leave to appeal can be sought. It does not create a permanent shield over an absconding defendant’s whereabouts or contact details.
Bennathan J also stressed that whether information attracts LPP is ultimately a matter for the court, not the defendant, to determine. He left open whether an absconding defendant’s whereabouts or contact details might be obtained through other lawful mechanisms, such as a warrant or summons.
What Does The Decision Mean for Practitioners?
For Solicitors and Barristers, Bark & Co confirms that a client’s decision to abscond does not, without more, end the Solicitor and client relationship or remove LPP. Where a defendant continues to instruct their Lawyers during ongoing proceedings, their current means of communication may remain privileged.
The judgment also provides an important reminder about the treatment of Defence Lawyers. Bennathan J considered Bark & Co’s conduct to have been entirely proper and rejected the suggestion that the Solicitors had facilitated a cover-up or brought the proceedings into disrepute. He emphasised the vital constitutional role of Solicitors and Counsel in Criminal Defence and the judiciary’s duty to protect them from unjustified opprobrium.
Bennathan J was also critical of the suggestion that Bark & Co could simply comply with the DO or withdraw from the case. He found that suggestion difficult to understand: once a court DO has been made, the options are to obey it or challenge it through the appropriate appellate route. Withdrawal from the case is not a substitute for challenging the DO.
For Practitioners, the message is therefore twofold: privilege remains a fundamental protection even in difficult circumstances, and Defence Lawyers should not be criticised for properly protecting their client’s legal rights. At the same time, Bark & Co does not provide an unlimited shield over an absconding defendant’s whereabouts; the precise nature of the information, the stage of the proceedings and the legal basis on which disclosure is sought will remain important.
Conclusion
In Rex (Bark Solicitors Company Limited) v Worcester Crown Court [2026] EWHC 2026 (Admin), Bennathan J held that a defendant’s means of communicating with his Solicitors during the currency of litigation are protected by LPP.
Bark sits at the intersection of two important principles: the court’s responsibility to ensure that criminal proceedings can proceed, and the fundamental protection afforded to confidential lawyer-client communications. Bennathan J’s decision confirms that Solicitors cannot simply be required to disclose a client’s current means of communication because doing so would assist in locating an absconding defendant.
For practitioners, the lesson is clear: an absconding defendant does not automatically lose the protection of LPP, and a Solicitor’s continued representation of that client does not, without more, make the Solicitor complicit in the client’s conduct.
[1] R (Bark Solicitors Company Limited) v Worcester Crown Court [2026] EWHC 2026 (Admin),
[2] Criminal Procedure Rules, particularly rr 1.1, 1.2, 3.2, 3.3 and 3.8.
