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

CPR Part 31.20 applies to the present case and provides:

“Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.”

Although these are proceedings in the Business and Property Courts, PD57AD does not apply because these are procurement proceedings. Paragraph 19 of that Practice Direction headed “Restriction on use of a privileged document which has been inadvertently disclosed” provides:

“19.1

Where a party inadvertently produces a privileged document, the party who has received the document may use it or its contents only with the permission of the court.

19.2

Where a party is told, or has reason to suspect, that a document has been produced to it inadvertently, that party shall not read the document and shall promptly notify the party who produced it to him. If that party confirms that the document was produced inadvertently, the receiving party shall, unless on application the court otherwise orders, either return it or destroy it, as directed by the producing party, without reading it.”

I shall return to the argument developed by the GC in relation to the Practice Direction.

It is common ground that the principles that apply where the court considers the application of Part 31.20 are those set out in Al Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780 at [16]:

“16.

In our judgment the following principles can be derived from those cases:

(i)

A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.

(ii)

Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.

(iii)

A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.

(iv)

In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.

(v)

However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.

(vi)

In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.

(vii)

A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

(a)

the solicitor appreciates that a mistake had been made before making some use of the document; or

(b)

it would be obvious to a reasonable solicitor in his position that a mistake has been made;

and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.

(viii)

Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; that decision remains a matter for the court.

(ix)

In both cases identified in vii)a) and b) above, there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend on the particular circumstances.

(x)

Since the court is exercising an equitable jurisdiction, there are no rigid rules.”

Although the focus in Al-Fayed was on the grant of injunctive relief to prohibit the use of documents, it is common ground, and was the view of the Court of Appeal, that the same principles apply where the permission of the court to rely on such documents is sought under Part 31.20. In other words, there are no rigid rules but the court is more likely to give permission if it was not obvious that the documents were disclosed as a result of a mistake; the court is more likely to find the mistake obvious if it would have been obvious to a reasonable solicitor; and the reasonable solicitor’s conclusion after detailed consideration will be a relevant, and potentially important, factor.

These principles were recently considered by Nigel Cooper KC (sitting as a Deputy High Court Judge) in Flowcrete UK Ltd. v Vebro Polymers UK Limited [2023] EWHC 22 (Comm). In that case, PD57AD applied and the judge noted at [26] that he did not understand paragraph 19 of that Practice Direction to have changed the position from that in respect of CPR Part 31.20. That view is also expressed in Hollander on Documentary Evidence at 25-02 and 25-03.

Relying on both Al-Fayed and Flowcrete, the claimants submitted (i) that the point in time at which the court will judge whether a reasonable solicitor should have realised that an obvious mistake had been made in disclosure is when the relevant document is first reviewed and (ii) that in considering the “standard” of the reasonable solicitor, including the knowledge they are treated as having, the court must have regard to all the circumstances including the extent of the claimed privilege, the nature of the disclosed documents, the complexity of disclosure, the way in which disclosure was given (including the nature of the disclosing party’s review), and the time it had taken the disclosing party to realise that there had been inadvertent disclosure.

In my view, neither of the cases cited is authority for the immutable proposition that the time at which the court will consider the position of the reasonable solicitor must be the first review. The submission, in any case, elides two issues. One is whether the mistake should have been obvious to a reasonable solicitor (an objective test); the other is what the apparently reasonable solicitor in fact thought (a subjective question) which the court may regard as an important pointer. There is a real risk in muddling these two matters. In proceedings such as the present, there is a tiered approach to the review of disclosure. The first review may, as a matter of fact, be carried out by someone who would not properly be characterised as the reasonable solicitor and the answer to the subjective question would be of less relevance than the view formed on a subsequent and different level of review. On the objective test, it seems to me unrealistic to confine the test to “first review” which itself begs the question of the nature of the first review. In my judgment, the issue that the court is concerned with is whether it should have been obvious to a reasonable solicitor carrying out a proper disclosure review that the document had been inadvertently disclosed. What is a reasonable solicitor and a proper disclosure review is case specific. The factors identified by the claimants are obviously capable of being relevant but again the extent to which they are relevant is case and document specific.

The GC referred the court to the decision in Atlantisrealm v Intelligent Land Investments (Renewable Energy) Ltd. [2017] EWCA Civ 1029. In that case, there had been a two tier review of the disclosed documents. The solicitor who carried out the first review took the view that the disclosing party had waived privilege but nonetheless referred the document to a more senior lawyer who informed the other party. At [48] Jackson LJ placed a gloss on the Al-Fayed principles finding that if an inspecting solicitor did not spot a mistake but referred the document to a more percipient colleague who did, the court may grant relief. That, he said, was then an example of obvious mistake. In coming to that conclusion, Jackson LJ recognised the complexities of disclosure in electronic form and made no criticism of the two tiered approach to review.

The GC also submitted that there were a number of factors that might be relevant to the assessment of whether the inadvertent disclosure was obvious. These were not dissimilar to those in the claimants’ list but were given different emphasis:

I have not set out the authorities that were cited by the GC for each of these propositions. I have no doubt that each of them might be a relevant proposition in a particular case or with regard to a particular document as I have said in respect of the claimants’ submissions. But as Mr Hossain KC submitted the authorities turn on their facts. By way of example only, the volume of alleged inadvertent disclosure in this case could not have been known to BCLP until 17 January 2025 at earliest by which time 30,000 documents in tranche 1 disclosure had been reviewed. 20,000 had been reviewed before 18 December 2024. So for the bulk of the disclosure review, BCLP did not know that there had been widespread mistaken disclosure and the proposition advanced by the GC does not assist. Further, as Mr Hossain submitted, it took about 7 weeks from tranche 1 disclosure being given for HL to identify the extent of the inadvertent disclosure, yet they argue that that ought to have been obvious to BCLP.

I regard the propositions advanced by the GC as indicative of matters that I may take into account in considering whether it was or should have been obvious that a privileged document was disclosed by mistake but I do not treat these as principles of law.

Lastly, in my view, in a case such as this the complexities of electronic disclosure may require a slight further gloss in the sense that if there is something in the nature of the document disclosed which ought to alert the reasonable reviewer to the possibility of mistake, he/she ought to inquire further and/or refer the document to a higher level review. In other words, the test of obviousness should not be confined to what is wholly obvious at first blush. But whether any further inquiry ought to be carried out will be entirely case and document specific.

I am conscious that that view may seem to conflict with Leggatt J in Mohammed v Ministry of Defence [2013] EWHC 4478 (QB). At [33] he said that the formulation of the fifth principle in Al-Fayed implied that the court should assume that detailed consideration had been given by the solicitor to the question of mistake. He continued:

“That assumption seems to me, with respect, to be appropriate: it would not generally be equitable to allow a party to benefit from a mistake because his solicitors have not given detailed consideration from which the mistake would have been obvious. Such consideration should clearly take account of background information within the solicitor's knowledge. However, since the test is one of obviousness, it is also clear that where such consideration gives rise to mere suspicion or doubt about the matter the reasonable solicitor is not obliged to make further enquiries of the other party before making use of the documents.”

That observation is focussed on inquiries of the other party when all the reviewing solicitor has is a mere doubt. It does not seem to me to preclude the proper approach in some circumstances being to consider whether further inquiry within the disclosed documents should be made.

Drawing the threads together and in terms of the reasonable solicitor, the following matters arise and may be taken into account: