HT-2022-000132 - [2025] EWHC 1058 (TCC)

This application arises out of the GC’s disclosure and, on its case, the inadvertent disclosure of over 4000 privileged or partially privileged documents. Although the scope of the dispute has narrowed, the court is still concerned with 128 documents in 20 categories which TNLC wishes to rely on (the “Use Pursued Documents”) and which GC resists. How this position was reached is of relevance to the application.

Following a Case Management Conference on 10 June 2024, Waksman J ordered disclosure to be given by reference to issues/ categories in accordance with CPR Part 31.5(7)(c).The categories of disclosure were to be agreed or directed. Disclosure was ordered to be given by 22 November 2024.

The agreed issues (on which TNLC now relies) included the following:

As the GC has submitted, the burden of disclosure in a procurement dispute very much falls on the defendant. I deal below with the evidence as to how the disclosure exercise was carried out. In the event, the GC’s disclosure was given in 2 tranches and tranche 1 disclosure was completed on 26 November 2024.

On 5 December 2024, Hogan Lovells (“HL”) for the GC wrote to Bryan Cave Leighton Paisner (“BCLP”) for TNLC stating that within their client’s disclosure there was privileged content which had, in error, been produced without redactions. HL identified two groups of documents which were versions of “Moderation Agreed Outcomes and Rationale Sheets” for Allwyn and Camelot. In Appendix 1 to the letter HL identified 35 documents that fell within these groups. They further said that they had also disclosed other versions or iterations of these documents with the correct redactions and these were identified in Appendix 2 to the letter. It is worth observing, and not I believe in issue, that the GC’s systems operated in such a way that, whenever any alteration was made to a document, a further version or iteration of the document was saved which has resulted in the disclosure of many versions of the same document rather than there being one document recording multiple changes. Inconsistent redaction of versions of the same document is one of the themes of this application.

The letter also said, at paragraph 6: “For the avoidance of doubt, in making its production, our client intended no waiver of privilege whatsoever, and we reserve the right to raise other issues in due course should they be revealed. We trust you will do likewise in your own review of our client’s disclosure.”

On 10 December 2024, HL wrote again to BCLP. HL stated that they had identified further documents that had been, they said, disclosed “without redactions in error”. There were three categories of document. Again it was the case that other versions of these documents had been produced properly redacted. One document was said to be wholly privileged. The total number of documents referred to in this letter was about 80.

The letter concluded with the following:

The evidence of Mr Bryant of BCLP is that by this time, BCLP had already embarked on the review of the GC’s disclosure and increased the size of the review team to do so. Some of the documents identified in the 5 and 10 December letters had been reviewed without the reviewer considering that anything privileged had been inadvertently disclosed. BCLP therefore sent a holding response stating that they would consider the position but, in the meantime, not show any of these document to clients without advance notice.

There was a further letter from HL to BCLP on 18 December 2023 identifying 78 further documents which were said to be wholly or partially privileged. The claim to privilege was said to be on the basis that the documents clearly contained legal advice or information that showed the trend of legal advice. The letter contained the following paragraphs:

“2.

Having further investigated the matters referenced in those letters, it has become apparent that there have been certain errors in our client’s disclosure process that has led to the inadvertent disclosure of privileged material, even beyond the documents identified to date. That investigation is ongoing. We are urgently reviewing the position and carrying out checks and searches to identify the extent of the documents affected, and will update you as soon as practicable.

…

6.

We repeat our comments in our earlier letters, that in making its Productions, our client intended no waiver of privilege whatsoever, and we reserve the right to raise other issues in due course should they be revealed. We trust you will do likewise in your own review.”

Before thispoint in the correspondence, and despite the reservation of position, HL’s correspondence did not indicate that there was any widespread failure in disclosure and the statements that no waiver of privilege was intended are apt to refer to the documents over which privilege was asserted in these letters rather than making a general statement that there had been no intention to disclose any privileged documents at all. That is of some relevance because, in relation to issue D35 in particular, the claimants say that the nature of the issue meant that it was likely that the GC would intentionally disclose privileged documents. That is disputed by HL. I do not think that what was said in the correspondence in December could be construed as a general statement that no privileged documents had been intentionally disclosed so as to put BCLP on notice that their expectation was misplaced. However, by 18 December, there was a warning that there might be more to come and a warning to BCLP to be alert to the same possibility.

By letter dated 20 December 2024, BCLP responded to the three letters from HL. Amongst other things, BCLP confirmed that they had not shown their clients any of the documents referred to in the 5 and 10 December letters. However, because they had not considered the documents identified in the 18 December letter to be privileged, some had been shown to the Named Client Representatives. They said that they would confirm which and not share any further. In this letter and subsequent correspondence BCLP also asked HL to articulate the basis of the claim for privilege. It is unnecessary for me to recite the entirety of the correspondence but I note, because it is one of the matters addressed at the hearing, that one matter on which HL sought to rely was common interest privilege as between the GC and DCMS in relation to “legal advice as to the 4NL competition process and its outcome.”

An aspect of the correspondence was also HL’s request to BCLP to delete the documents HL had identified as being wholly or partially privileged and/or incompletely redacted; to confirm that they had not read and/or would not read the documents; and, in any event, not to share them with any client representative. There is a dispute between HL and BCLP as to the adequacy of BCLP’s response to this correspondence but I have not considered it necessary to address this further in the context of this application.

By letter dated 17 January 2025, BCLP confirmed that they would delete some of the documents that HL had identified in its letters in December. BCLP identified 14 documents from within this group that they had already reviewed and intended to use in the context of amendments to the pleadings. One of those documents (which has been referred to as the “Client Reviewed Document”) had already been shared with a client representative before HL had asserted privilege in the document.BCLP’s position was that the document had not been disclosed as a result of an obvious error but as a result of being relevant to a disclosure issue.

Although correspondence had continued, it was not until HL’s letter dated 17 January 2025 that the apparent scale of the errors in disclosure became clear. In that letter HL stated that, following further review, they had identified an additional 4,079 documents that were wholly or partially privileged and had been produced without redactions or with incomplete redactions.

There followed further correspondence from 20 January 2025 which related to what should happen next. In the course of this correspondence, BCLP stated for the first time that there was one document that they considered had been disclosed as a result of an obvious error and that was returned. HL also said that their review of the documents was ongoing.

That led to the issue of the claimants’ application. Although expressed in rather more complex terms, reflecting proposals which had been made in correspondence as to what should happen next, the essence of the application was to seek the court’s decision on the issue of whether the documents which HL said were privileged and had been inadvertently disclosed could be used by the claimants, in particular, for the purposes of preparing amended pleadings. There was concern to resolve this position promptly because of potential limitation issues. Correspondence with the court followed in which Waksman J expressed the view that the parties should be able to reach an agreement which would avoid any limitation issues arising. In the course of this correspondence, HL said that they had carried out spot checks on the disclosure and identified yet further privileged documents that had been in advertently disclosed. This opened up the possibility that yet further documents would be said to fall into this group. The final number was 4321 documents.

The court listed a directions hearing on 5 February which, in the event, took the entire day and was wide ranging but did result in directions leading to the present hearing. Since then, the parties have adopted what appears to me to have been a co-operative and productive approach to seeking to narrow the issues. On the one hand, BCLP has identified the contentious documents that the claimants would wish to deploy and HL have indicated the documents the defendant objects to the claimants making use of. The GC has accepted that the claimants can use over a thousand of the documents which the GC maintains were inadvertently disclosed.

As a result, by the time of this hearing, the dispute had narrowed to 128 documents which were referred to as the Use Pursued Documents. These were drawn together in an Annexure to the 8th witness statement of Christopher Bryant where they were grouped into 20 categories. This Annexure incorporated the comments of HL and reflected the evidence of Jennifer Dickey of HL in her 8th witness statement. The parties further agreed that in relation to each category, I should reach a decision on a sample document and that decision would then apply to all documents within that group. I express my appreciation of the parties’ approach – the determination of this application would otherwise have presented the court with an astonishing, if not completely impracticable, task.