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

The Interested Parties did not support the claimants’ position on this application. Nonetheless, Mr Hossain placed some reliance on the Interested Parties’ disclosure review and the fact that, before HL notified any inadvertent disclosure of privileged documents, Quinn Emanuel (“QE”), in common with BCLP, had not considered that any document had been disclosed as a result of an obvious mistake. This was, at highest, another subjective pointer to the view the reasonable solicitor would have formed.

Mr Barrett KC emphasised that that review was principally for the purpose of ensuring that commercially confidential material from Allwyn’s bid was properly identified and kept within the Confidentiality Ring. The confidential documents (which were Allwyn’s documents) were not ones that would contain privileged material so privilege was not relevant to QE’s review.

It is unfortunate that that submission led to a further round of post-hearing correspondence between the parties, all of which was copied to the court. By letter to QE dated 11 March 2025, BCLP pointed out that QE had previously said that it had suspended its disclosure review because of lack of certainty as a result of the GC’s assertion that large numbers of privileged documents had been inadvertently disclosed. That was after the confidentiality review had been completed and BCLP, therefore, inferred that QE had been carrying out a wider review. The response from QE by letter dated 18 March 2025 refuted that inference and said that BCLP had manufactured an inconsistency. Their point was that, given the alleged errors in Tranche 1 disclosure, QE was concerned about errors in the Tranche 2 disclosure and their previous correspondence was addressed to that and to the suspension of any further review.

This was all unnecessary. At its highest Mr Hossain’s submission was one of icing on the cake. It was no more than a high level submission that, whatever the focus of the QE review, QE had not noted any documents obviously disclosed in error. But, since QE offered no evidence about their disclosure review exercise beyond what was said about identification of confidential documents, this was a minor point that added nothing to the extensive evidence and submissions of the claimants and defendant. In light of that evidence and those submissions, it would have been remarkable for the court to place any significant or determinative reliance on the outcome of QE’s disclosure exercise. In the event, it has played no part in my decisions.