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

There was extensive evidence before me as to the way in which each of the GC and TNLC conducted their disclosure exercises.

At the directions hearing in February, one issue that arose was the lack of detail as to how HL on behalf of the GC had undertaken the disclosure exercise. That issue went principally to timing. In short, the GC contended that it needed a lengthy period to complete its review of disclosure. Whilst appreciating HL’s desire to take care to ensure that further inadvertent disclosure did not occur, it seemed to me that by this stage they must know why and how errors had occurred and could guard against them. It was also not appropriate to allow errors in the GC’s disclosure to take over and drive the progress of these actions.

The level of detail which has now been provided as to how HL conducted disclosure seems to be intended to meet this point but no applications are made to further extend time.

The GC’s position was that more than 3 million documents were collected and searches were run across more than 80 custodians and document repositories and over a 4½ year period.

The GC engaged a large review team of 67 first and second level reviewers from HL and Capital Law. Guidance was given to them and a third level of review was carried out by a HL core team. 330,000 documents were manually reviewed at first and/or second level and 53,000 documents were disclosed in the two tranches. Mr Bryant’s evidence is that the first tranche disclosure amounted to about 40,000 documents (without placeholders) and that over 11,000 documents were withheld on the grounds of full or partial privilege which TNLC relies on as indicating to BCLP that HL had carried out a thorough and proper privilege review.

That evidence gives a flavour of the task that then confronted the claimants in review. The evidence of Ms Dickey was also adduced in the context of explaining the scope of the issues that had arisen with the inadvertent disclosure of privileged documents.

BCLP deployed a team of 28 first level reviewers. The first level reviewers included members of BCLP’s core team being solicitors who regularly work on this case. Others were solicitors who practise in litigation and similar areas; trainees in the department; and in one case an experienced paralegal with substantial experience of document review. All the trainee reviewers had had mandatory training on privilege when entering the litigation department including legal advice privilege and limited waiver. Before the initial review commenced there was a briefing session with the reviewers to summarise the background to the dispute and explain the disclosure issues. The review used a coding system which gave the reviewers options to tick boxes, for example, “relevance”, “hot” documents, “query” where the reviewer was not sure of relevance, overlaps to be reviewed by another team, duplicates and privilege. Documents where there was a query or a privileged query in particular could be escalated to a second level of reviewer. The second level review was carried out by a member of the core team.

Several reviewers were allocated to reviewing documents within the same category, the categories being related to the disclosure issues. Issues D33, D34 and D35 were grouped together for this purpose. There were 4 reviewers allocated to these issues. It is worth noting the scope of this disclosure which on Mr Bryant’s evidence was 12,381 documents in response to D33, 13,461 in response to D34, and 8,671 in response to D35.

The majority of the Use Pursued Documents had been reviewed before 17 January and representative documents from 15 of the 20 groupings still in issue had been reviewed before 17 January 2025.