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

Line 14 concerns a single document headed “Draft Clarification response to assertions made in HL’s email to the Commission of Jan 23^rd 2022”. The document was partially redacted. BCLP’s evidence is that it was not escalated for a privilege review and there is no evidence from the reviewer (who is on extended leave). After the document was notified as one HL said had been inadvertently disclosed, there was a further review. Mr Bryant says that they were not particularly concerned by the reference to “HL”; that as it had already been redacted they considered that anything privileged had already been addressed; and that the remaining content addressed policy and not legal issues.

HL’s position is that the document contains passages from its email and a response and that, in short, it is entirely clear from that that the document is covered by legal advice privilege. Further, HL point out that the unredacted passages contain reference to the risk of legal challenge by the applicant and other stakeholders.

The partial redaction is undoubtedly an indicator that the document has been reviewed by HL and I would not wish to lose sight of the principle in Al-Fayed that the receiving party is entitled to start with the assumption that a proper review for privilege has been carried out by the disclosing party.

The first part of the document is concerned with a query about [REDACTED]. [REDACTED] the very fact that solicitors were questioning this and the tone of the query clearly implies that there were legal implications and that HL’s purpose was to elicit information on which to give legal advice. The second part of the document (unredacted) concerns [REDACTED], making it all the clearer that they are seeking to understand the position for the purposes of legal advice. These are very much part of a continuum of legal advice.

In my view, not only is this document privileged but it ought to have been obvious that it was disclosed in error. The argument to the contrary, as I have said, is that the partial redaction suggested otherwise, but the nature of the document seems to me to militate in favour of the conclusion that there was an error in redaction rather than a deliberate disclosure. I conclude that this document falls on the side of the line that means that the claimants should not have permission to rely on it.