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

This document category is an email chain from 16 December 2021 which begins with the subject “FW: Branding [Finalising contingency session]”. The GC only objects to use being made of the part of the chain which is an email from Samina Khan who is part of the GC’s legal team.

The email chain starts with a response to a Teams meeting by Jonathan Tuchner stating that he is unable to attend [REDACTED]. An email was then sent by Taj Chana to a number of recipients, including Ms Khan, suggesting that the final session continued in Mr Tuchner’s absence. Ms Khan responded (adding “legal advice”) to the subject line of the email. She also added “[email protected])” as a recipient. [REDACTED]. The email was then sent on by “4NLCEvaluation” to the Branding Evaluators as an “update”.

BCLP’s position is that the disclosure of this email chain appeared to respond to issue D15 in relation to moderation. Despite the subject line, there is no legal advice in this email and there was, in any case, nothing to alert the actual reviewer or the putative reasonable solicitor to the fact that this document was privileged, let alone disclosed inadvertently. Mr Bryant says that the first reviewer could not recall this specific document; knew that Taj Chana was an evaluator; did not know who Ms Khan was; and did not regard the email as containing legal advice.

HL says that, given Ms Khan’s status as a member of the legal team, her correspondence is obviously privileged and that it is advice as to the limits of the proposed meeting if it is to go ahead.

This item, therefore, raises two of the recurrent themes which I have considered above. The first relates to the identity of the author of the email. As I have said, it is not the case that the GC provided to the claimants any list of members of their internal legal team (whether names or initials) at the time tranche 1 disclosure was given. That did not happen until 9 January 2025. Whilst Ms Dickey is right to say that the provision of such a list is not a normal practice, given the scope of disclosure and, on the GC’s own case, the disclosure of documents that were likely to have been reviewed by lawyers, it would have been a sensible course of action to identify the legal team.

The GC argues that it could be readily ascertained that Ms Khan was a member of the legal team for the reasons set out above. As I have indicated when considering the issue of the identity of the legal team, and at the risk of repetition, it does not seem to me that the reasonable solicitor should be expected to search out the identity of an in house legal team where the other party has not sought to identify them. That must particularly be the case where it is obvious that the disclosure review is going to be carried out by multiple people and at different levels, and that would have been obvious in this case. There would, of course, be circumstances in which something authored by a member of an in house team was identified as such or was so obviously legal advice that it should lead the receiving party to consider whether it was privileged even though they did not know the names of the in house team. It is a case sensitive question.

The second matter is the knowledge and experience of the reasonable solicitor in respect of the particular field of practice. In short, if one knows that a legal issue may arise as to the validity of the proposed meeting if someone is not present, one might appreciate that the advice which Ms Khan has given is legal advice but that would require a level of knowledge about the process and the type of meeting.

In this case, although with the benefit of hindsight one might be able to say that the email gives some legal advice on the decision making process, that is not at all obvious from the email itself. The subject line “legal advice” does not mark the email as privileged. The advice as to process within the email could as easily be given by an experienced lay person. Ms Khan talks about [REDACTED] She does not say that she will be answering those queries on behalf of “legal”. [REDACTED] which are not obviously related to a legal review of a “draft moderation outcome”. The copying in of LegalRequests implies that the email is keeping “legal” informed or making a request for legal advice and not that Ms Khan is part of the legal team. The email that further forwarded Ms Khan’s email said nothing to indicate that it was legal advice.

I do not consider that the reasonable solicitor ought to have known that this email was privileged and had obviously been disclosed in error and I give permission for its use.