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

The group at line 12 is 2 versions (apparently duplicates) of a paper entitled “4NL Implementation Review Outcome” prepared for a board meeting on 11 August 2023. The author of the paper is John Tanner of the GC.

The paper is marked “Official Sensitive” but not privileged. The header table includes reference to the corporate risk as “Disrupted transition from 3NL to 4NL”. The first paragraph of the (sample) document states the purpose of the paper to be to summarise the outputs from the Implementation Review triggered in March 2023 and:

“Explain why it is appropriate to amend the Draft Licence, Enabling Agreement (EA) and associated plans and other documents and the nature of proposed changes.”

Mr Hossain submitted that it is a commercial document for commercial people and not subject to privilege.

The document, however, contains amendments in red and blue. In the footer there is, in blue, a document version number and the name of Hogan Lovells. There are amendments to the document in blue in the same style as the HL footer. Additionally there are some comments in boxes with initials including “HL”. The vast majority of the comments are from others particularly “JT”. Not all amendments are accompanied by a box. The GC accepts that the underlying document is not privileged and has disclosed other versions of this document but asserts privilege over this version with its blue tracked changes.

BCLP say that the content of the document is concerned with Allwyn’s delay and therefore appeared to have been disclosed in relation to issues D33 and D34. The original author is not a lawyer and, although there is reference to HL, the comments do not contain or solicit legal advice.

In response, HL claim that the document is wholly privileged. They say, firstly, that there is inadequate evidence of what the reviewer actually thought and whether, in light of the HL markings, the reviewer gave any actual consideration to whether the document was privileged and had been disclosed deliberately or not. They note that this document was not escalated. In this instance, it does seem to me that the fact that it is clear that the document had been reviewed and amended by solicitors was itself sufficient to cause any reviewer to question whether it had been disclosed deliberately or not. In the absence of evidence as to the view actually formed, the court can do no more than infer that consideration was given to that issue because any reviewer would be aware of the potential privilege issues and it was a coding option. But that is not sufficient to be a strong pointer that it was not obvious that the document had been disclosed in error.

HL say that although the author is Mr Tanner, it should have been and was obvious from the nature of the amendments and the footer that this was a version on which HL had provided their comments. They argue that the fact that some of the comments did not themselves contain legal advice is irrelevant because the overall purpose of the lawyers’ comments was to record their advice. As to the disclosure issues, HL say that the fact that issues D33 and D34 were in play does not demonstrate an intention to waive privilege.

BCLP responded that a Senior Associate had spoken to the initial reviewer. Their approach was guided by the identity of the recipient/ author of a document. The reviewer could not recall this particular document. When shown it, the reviewer noted that the footer referred to HL but did not consider that the content indicated it had been disclosed inadvertently. That does not amount to evidence of the view the reviewer actually formed but is at best evidence of what the reviewer might have thought which itself may be coloured by the circumstances that this query was being raised in the context of this application. After HL had notified BCLP that the document had been disclosed by mistake, there was a further review and the same conclusion was reached at a higher level of review.

This document is, in my view, significantly different from others in this category. Mr Hossain conceded that the blue comments at least might be privileged. Irrespective of the author of the document, it is clear on its face that it had been provided to solicitors for the purposes of their review and comment and that their comments were included in this version. The natural inference is that the comments were or might contain legal advice. The fact that some of the comments do not contain legal advice does not change that. Some of the comments reflect, at the least, HL’s advice as to what the GC’s position on legal matters should be – eg. paragraph 11 [REDACTED]; paragraph 52 [REDACTED]. These examples support the GC’s argument that the purpose of seeking HL’s comments was to seek and record legal advice.

I do not accept that the error ought not to have been obvious because the documents related to disclosure issues D33 and D34. The claimants characterise the disclosure against these issues as directly relevant to whether the amendments to the Enabling Agreement and Licence were substantial. That is a fair characterisation and it does not imply that disclosure would extend to legal advice on that issue. There is nothing in the formulation of these disclosure issues that indicates that there was any general intention to waive privilege in legal advice.

The further matter relied upon by BCLP to support the view formed - at least on the later review - that the document had been intentionally disclosed is the note (initialled JT) against paragraph 51. That paragraph had been amended to delete reference to a paper from HL and to note a risk of legal challenge and an oral update from HL to be provided to the Board. The comment noted that HL’s advice was to be appended as an Annex and that HL had advised it should be in a separate paper to retain legal privilege. Mr Bryant’s inference is that the main paper was intentionally disclosed in contrast to any Annex which was not. It is not clear to me whether there was an Annex as Mr Bryant states that the annexes were withheld as not relevant rather than as privileged. Whilst the distinction provides some support for BCLP’s conclusion, I cannot see that it follows from the reference to a discrete paper containing legal advice that the document itself either does not contain such advice or, if it does, that it was intentionally disclosed. It is a commercial document and not one authored by solicitors but it remains one into which the solicitors had an input and the natural inference is that they did so to provide legal advice.

It follows that I do not give permission to the claimants to use this category of document.