[2025] EWHC 486 (TCC)

This hearing was directed by Waksman J to deal with three issues, of which the first two were (i) directions for the hearing of the claimants’ application dated 23 January, to make use of privileged documents which the defendants say were inadvertently disclosed and (ii) to deal with the issue of any further limitation protections required in relation to the so-called “deleted documents” and privileged documents within the “wider disclosure”, both of those being terms used in prior correspondence between the parties and copied to the court. There is a third further issue which I will come to in due course.

The first thing to say is that the claimants’ application dated 23 January will be heard on 7 March and not on a later date, and therefore I am, in that respect, concerned with directions leading to a hearing on that date.

By way of background, and as Miss Hannaford KC has said, in a procurement dispute of this nature the burden of disclosure falls heavily on the defendant, but it is, I would say, equally true that the burden of considering the impact of that disclosure is on the claimant, and it is often said by claimants that they cannot know their case without adequate disclosure.

In this case, what has variously been described as an unprecedented, certainly an extraordinary, position has arisen.

I am not going to set out the whole history of the disclosure matters, which are fully set out in the skeleton arguments before me, but summarising, by consent, disclosure was split into two tranches. Tranche 1 disclosure was given on 22 November 2024, which I believe was an extended date already, and some of the disclosure a little bit later, on 26 November, but nothing turns on that.

Almost since then, certainly since December of last year, issues have arisen about what the defendants say are documents that are privileged or partly privileged and were inadvertently disclosed. It is now said that over 4,000 documents which were in whole or in part privileged were inadvertently disclosed. That identification of over 4,000 documents was the product of a category-based review carried out on a pool of documents which were re-reviewed after the disclosure review. The results of that review, in the sense of the number of documents, were shared with the claimants and the interested parties on 17 January of this year.

After that, on 29 January, by email, Hogan Lovells, on behalf of the defendants, said that, over the past forty-eight hours, they had also identified that there appeared to be further inadvertently disclosed documents in the remainder of the tranche 1 disclosed documents not so far reviewed, and referred to, and it is the term I am going to adopt, as “the wider pool”. In the statement of Ms Dickey, served two days ago, it was stated that approximately 19,000 documents were now being reviewed to identify what documents may have been inadvertently disclosed.

As I have said, that position – the number of documents already identified as having been inadvertently disclosed and potentially to be identified as inadvertently disclosed - is quite extraordinary and it seems to me, despite some compromise proposals which Ms Hannaford has offered, that the defendants are seeking, in effect, to let this issue of inadvertent disclosure of privileged documents drive the timetable and case management. It is proving to be a distraction not so much from the substance of the proceedings but in terms of the deployment of the resources of all of the legal teams involved.

Even given the vast number of documents apparently identified for disclosure, running to the millions, it is obvious that something went very wrong with the first review for privilege. That is said to be at least in part the product of human error but, as Mr Hossain KC has submitted, no further explanation has been offered as to the nature of the human error or how it came about, what instructions may have been given to those reviewing documents for privilege, and where those instructions may have been in error or the human applying them may have been in error. But it seems to me that it must now be the case that the defendant has some idea, at the very least, of what those errors were and where that process went wrong.

What Hogan Lovells say they are now doing is taking – and this is my word, not theirs – a “cautious” approach to the review of further documents. That is being carried out at a very high level and by a highly experienced team within the firm, and I certainly do not doubt that the matter is being taken very seriously and great efforts, both in terms of time applied and care applied, are being made. But the court and the claimants are still being told that it will take until 10 March to complete this review, and that is said with very little explanation as to why, other than the care that is being taken over the review, and the time that was taken to review the documents between December and the email of 17 January.

As Mr Hossain has submitted, it seems to me important that this is not a first review, but rather it is a re-re-review against a background of knowledge of what has gone wrong before. In any event, the need to revisit the privilege review is entirely down to the defendant. It should not be allowed to drive the case management of this litigation; rather it should be fitted into the time available. It seems to me incumbent on the defendant to cut its cloth accordingly, and so it will be, I think, apparent from that that, whilst I may be prepared to tweak the proposed dates in respect of preparation for the hearing and the review of the wider disclosure pool, it will not be to the extent that the defendant seeks.

So, as I said at the start of this, the hearing of the claimants’ application of 23 January will be on 7 March. There is a large measure of agreement as to the directions to that hearing. What I propose to do, or will ask the parties to do in drawing up the order, is to use the claimants’ version as the template, but to substitute at 3(a) and 3(b) what is in the defendant’s draft at 2(a) and 2(b), but with the dates of 10 February in respect of each of those sub-paragraphs, which will deal with the identification of what is claimed to be privileged and the provision of redacted versions of some of the so-called deleted documents. That will require a bit of amendment to the defendant’s drafting, as has been discussed in the course of the hearing, to ensure that it covers both the so-called “recalled documents”, which are going to be highlighted to show that over which privilege is claimed, and the so-called “deleted documents”, which will be provided in redacted form, but I am confident that I can leave counsel to formulate something that captures that properly. I will come back to the rest of the directions to the hearing on 7 March.

In respect of the documents said to have been inadvertently disclosed in the wider pool, using again the claimants’ version of the draft order, at paragraph 5, I will order that the defendant will identify any further claims of inadvertent disclosure in writing to the parties by no later than 14 February 2025. I recognise that that puts considerable pressure on the legal teams but, as I have already said, it seems to me that the approach to this yet further review will have to be tailored accordingly. The nature of the error that was made and how to correct it, or the errors that were made and how to correct them, must be known to the defendant. That these errors would have to be addressed and the way in which those errors needed to be addressed must have been apparent for some time because of the review that has already produced the 4,000 documents said to have been inadvertently disclosed. That date is later than the claimants would want and considerably earlier than the defendant would wish, but it will have to be a case of cutting one’s cloth accordingly.

To take account of that, going back to, in the claimants’ version, subparagraph 4(c), I will make the date for the claimants’ supplemental evidence 24 February, which allows a few extra days - albeit that is over a weekend, everybody seems to be working weekends in this case anyway. It seems to me that should be sufficient time for the claimants to deal both with the documents that are identified under subparagraphs (a) and (b), as they will be, and with the documents from the wider disclosure pool, so I do not, at the moment, propose to make the order that the wider disclosure pool documents need not be addressed until the claimant serves its evidence in reply. What I will say is that if there should be any application to that effect in due course, then that can be made to the court, as it were, informally, and I would expect it to be acceded to, given the indications already given.

The following directions as to the defendant’s evidence, the claimants’ evidence in reply and skeleton arguments should then run as per the claimants’ draft. I would like to include, at (f), which is skeleton arguments being exchanged on 4 March, an express provision, for the avoidance of doubt, that they should also be filed with the court, together with any further bundle for the application and any bundle of authorities, which I would anticipate there would be for this hearing. The court’s reading time will be 6 March, but if the materials are available a day before that allows for some slippage and the unlikely prospect that the judge will be able to read earlier. So if I could ask counsel again to tweak those provisions accordingly.

I should add that, in making those orders, and particularly those in relation to the identification of inadvertently disclosed documents in the wider pool, I have taken account of Miss Hannaford’s submission that some slippage could be allowed in the timetable so that if, after identification of such documents on 10 March, as the defendant wanted, there was no agreement as to how the decisions made on 7 March should be applied to the documents, that sort of slippage could be accommodated. I am afraid I consider that submission to be unrealistic or at least one on which I simply cannot form a sensible view as things stand. There is simply no material before the court that gives any indication of how many documents have been identified already from the review of the wider pool as potentially being inadvertently disclosed and therefore no indication of how many documents may be identified as having been inadvertently disclosed, and, as Mr Hossain has said, no indication as to why it is said that documents have been inadvertently disclosed and what the disclosure errors or reviewing errors have been. So it is simply not possible to form a view as to what the scope of the exercise after 10 March might be and what impact it might have on the timetable and it is, in principle, wrong in these circumstances, it seems to me, to simply assume that all will be well and all would be agreed. The directions that I have therefore made are intended to avoid that open-ended possibility.

I think it follows, given Mr Hossain’s submissions in reply, that the date for the amendments of the Particulars of Claim not affected by inadvertent disclosure issues should then be pushed back to 21 February to allow for review of any further documents identified from the wider pool, and then the further date of 11 April will remain. I am not persuaded that I should order that all amendments should be, as it were, put off until 11 April. It may seem generous of the defendant to offer that, but there is an understandable concern on the claimants’ part about getting their amendments in, and it seems to me if the claimants wish to progress by giving the defendant greater notice of the amendments they wish to make, in accordance with the existing timetable, then so be it. Pushing the date for all amendments off into April would not meet all of the other issues that arise in relation to the inadvertent disclosure of privileged documents.

In relation to limitation, I will make the order in the terms sought in the claimants’ draft. Again, as has been discussed in the course of the argument, the defendant’s offer might seem a generous one, but the claimants have concerns about it. It is, as Mr Hossain said, only the claimants who are at risk on limitation, and therefore the approach that they wish to take should, I think, be preferred.