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

Against that general background, two specific issues arise in the present case which it is convenient to deal with at this point.

Firstly, in some aspects of her submissions, Ms Hannaford KC relied on what would be known and obvious to a solicitor with experience in the field of procurement law. As I shall come to, a specific example was comments or questions on scoring initialled by the GC’s internal lawyers and her submission was that those who practise in this field would know that lawyers commonly provide such input (which is privileged as legal advice). In a specialist field such as this, I accept that the reasonable solicitor should be one with a reasonable level of knowledge of practice in the field.

The second, very much case specific, issue is one of knowledge of the identity of the members of the GC’s in house legal team. In some of the documents in issue comments appear with initials (but not names) or members of the GC’s legal team are copied into emails but without job titles or an email address that distinguishes them from any other staff.

The claimants say that they could not have been expected to know who the initials referred to or that people not identified as such were lawyers, so that there was nothing in their involvement in documents/ correspondence that might indicate the content was privileged.

Mr Bryant also points out that there were over 800 names that occurred as senders of emails in the GC’s disclosure so that an investigation of the role of each person who may be referred to would have been unreasonable and unrealistic. No list of GC legal team personnel was provided until after the issue of inadvertent disclosure had arisen.

In relation to the identity of the comment makers, the claimants also relied on the fact that documents were provided as images without metadata so that beyond the initials the makers of comments could not be identified by name. Ms Hannaford, in her submissions, disputed that the identities were not apparent in all documents and asserted that some documents had been provided with metadata. She had available to her, but not shared with the court or the claimants, a table which supported that submission.

I asked to see the document which was provided to me following the hearing. That led to further correspondence from the parties addressed to the court.

The table prepared by the GC addressed each of the disputed groups of Use Pursued Documents. It was not solely relevant to those with comment boxes. To summarise, it identified that some documents were provided as native files which showed names of comment makers and with metadata (including author details and file name). Some were produced as an image with metadata (author and file name) but not the names of comment makers. Some were produced with privilege redactions and as an image only with no metadata.

In their letter of 10 March 2025 in response, BCLP explained that, although in some instances, HL’s disclosure platform may have shown the full names of comment makers, that was not the case with the platform used by BCLP which only showed the initials. That was accepted by HL who had not sought to suggest otherwise. The letter continued:

“However, no matter which platform was used, in the absence of the Defendant having provided details of their legal personnel, sight of a full name would have been of no assistance without also understanding the job role attached to that name, …”

Although I asked to see this document because it had been referred to in submissions, it did not take matters much further for the reason given by BCLP in that letter.

Ms Hannaford, however, submitted that it was or ought to have been obvious to BCLP who the legal team were and what their input and involvement was. I take Samina Khan (with initials SK) as an example. Ms Hannaford drew the court’s attention to the fact that the role of Samina Khan could be identified from the Scribe templates (which form 3 of the disputed groups) and Ms Hannaford referred specifically to a document relevant to the line 26 group of documents. Ms Khan had attended part of a moderation session and was listed in attendance with “4NL Legal” after her name. Ms Hannaford submitted that:

Although these figures seem substantial, they were small numbers of documents within the entire scope of disclosure. The effect of the submission seems to me to be that, on the GC’s case, it was incumbent on the claimants to identify from every available document the members of the GC in house legal team, produce and circulate a list to all the reviewers, and direct the reviewers to be alert the possibility of comments by persons with those initials. Particularly where the GC had done nothing to identify their own legal team, that is well beyond what the reasonable solicitor could be expected to do and does not assist in setting the standard by which the obviousness of a mistake should be judged.