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

Returning to the review of disclosed documents, on the subjective question of the claimants’ reviewers’ consideration of the documents, it is the claimants’ position that a proper disclosure review had been carried out and at no point before 17 January 2025 had it been obvious to BCLP (other than in relation to one document) that anything had been inadvertently disclosed. That is relied on as a strong indicator, it is submitted, that inadvertent disclosure would not have been obvious to the reasonable solicitor. That was disputed by the GC and how BCLP had carried out disclosure was the subject of comment and criticism from the GC. As Clarke LJ said in Al-Fayed, the view of the reasonable solicitor is not conclusive and the matter is still one for the court and, I would add, the driver remains the objective test.

Ms Oppenheimer KC’s submission was that the manner in which disclosure had been carried out did not meet the threshold test of evidence that a solicitor had given detailed consideration to the question of whether documents have been made available by mistake and honestly concluded that they had not.

She submitted that the evidence as to the thought processes of the first and second level reviewers was inadequate and HL’s comments in the Annexure repeatedly asserted that the evidence in this respect was inadequate despite the efforts of BCLP to provide the view of the reviewers.

The difficulty in this case, and one that arises against the background of the authorities relied upon is that, with the exception of the Atlantisrealm case, the authorities are concerned with and/or framed in terms of what might be characterised as a traditional disclosure review carried out by one solicitor or at least a small number of solicitors with the same level of experience and knowledge of the case. That does not reflect the reality of review of extensive disclosure of largely electronic documents involving, for example, multiple versions of the same document and repetitive email chains. The approach that was taken by both TNLC and the GC was to carry out review at different tiers where the level 1 review was not necessarily carried out by the sort of solicitor that the authorities contemplate or one that has the characteristics of the putative reasonable solicitor. However, the claimants and defendant also had a system for escalation to a core team of solicitors. There is nothing wrong with this – it is an appropriate and proportionate approach to the review of this type of disclosure.

The criticism that the GC makes, however, is that the claimants’ approach does not evidence the review of documents at level 1 (or perhaps level 2 also) being one that was analogous to the detailed consideration referred to in Al-Fayed. It is argued that the directions given to level 1 reviewers did not expressly require them to address each document for privilege - starting presumably with the mental question “might this be privileged?”. That is unrealistic. A reasonable solicitor (or level 1 reviewer) starts from the premise that they are reviewing documents that have been properly disclosed. They cannot be expected to start each review with the question “Is this document actually privileged?” and nor is it necessary to give such instructions if the reviewer is familiar with the principles of privilege. That is all the more the case where, as here and as the claimants point out, the GC’s disclosure was dealt with by a well-known firm with substantial resources and experience available to it, and a large number of documents were duly withheld for privilege.

Ms Oppenheimer also submitted that the directions given to the level 1 reviewers meant that the court should afford little or no weight to their views in any assessment of mistaken disclosure because Mr Bryant’s evidence was to the effect that, although level 1 reviewers had an option to code a document for privilege, that was principally to identify where a document might have been “over-redacted” for privilege rather than inadvertently disclosed. I do not accept that reading of Mr Bryant’s evidence. My understanding of Mr Bryant’s evidence is that most of the documents that were escalated with the privilege code were escalated because they were considered over-redacted but not that that was the principal purpose of the privilege review.

In this sort of disclosure review, with differing levels of review, the objective question remains, at any level, whether it would have been obvious to a reasonable solicitor, who should be assumed to be one with a reasonable level of knowledge of the case, that a document had been disclosed inadvertently – that is both that it was privileged and that it had not been disclosed deliberately. When considering the subjective question of what the reviewer actually thought, it would be wrong to give no weight to the assessment of the level 1 reviewer but what weight might depend on the status and experience of that reviewer and, as the GC submitted, what directions had been given to that reviewer. In the present case, I see no reason to regard those directions as inadequate or to diminish the relevance of the level 1 review as a result.

However, in my view, the focus on the level 1 review and the apparent concern that the court would proceed on the basis of regarding it as an important pointer to obviousness that the document was not inadvertently disclosed was to a considerable extent misplaced or unfounded. Where there are levels of review, the court may have regard to each level and form a view as to the weight to be given to each level of review. But the review that accords more closely with that contemplated in Al-Fayed as an important pointer is a detailed consideration of the question of whether the document had been disclosed by mistake. It is for this reason that I have identified the importance of not muddling the objective and subjective and am not assisted by references to “first review”.

In this case it seems to me that the type of review contemplated in Al-Fayed took place when the document was escalated to the core team and it is that review that is the far more relevant pointer. In fact, the majority of the documents that are still in issue were the subject of such a review. That is consistent with the approach of the Court of Appeal in Altantisrealm.

Ms Oppenheimer also submitted that, in the exercise of my discretion, I should take account of the conduct of BCLP which the GC criticised.

Firstly, relying on the practice envisaged by PD57AD, the GC submitted that suspicion that a document was privileged and might have been disclosed in error was sufficient to cause the reviewing party to go no further. Aside from the fact that the Practice Direction does not apply to these proceedings, Mr Hossain submitted that that general submission could not be right because it would be inconsistent with the principles in Al-Fayed.The principles articulated in that case recognise, firstly, that a party may choose to deliberately disclose a privileged document. If a party has disclosed a privileged document in error, the test that the court applies to determine the use that may be made of that document is whether it was or should have been obvious to the reasonable solicitor that the document had not been disclosed deliberately but, rather, inadvertently. If the solicitor has given careful consideration to that question, the court gives substantial weight to his conclusion. Mr Hossain submitted that, if the GC’s submission were right, the solicitor and the court would never reach this point. The merest suspicion would trigger a need to notify the other party and the test that the court would apply to its decision as to whether the document should be returned would either be different – for example, whether the reasonable solicitor ought to have suspected that the document had been inadvertently disclosed. That would effect a change in the law which cannot have been the intention of the Practice Direction.

There does seem to me to be a potential tension between the test in Al-Fayed and the terms of the Practice Direction. It is one that I do not need to resolve because the Practice Direction does not apply. Even if I did have regard to it, it would seem to me unlikely that the Practice Direction was intended to effect a significant change in the law. I have already referred to the approach to that issue in Flowcrete. What the Practice Direction seeks to do is encapsulate, in very short form, what the court would expect to be done in the “standard” case where a document, for example one that patently contained legal advice, was disclosed. It cannot mean that where the position is less clear cut, a solicitor can no longer give proper consideration to whether there has been an inadvertent or deliberate disclosure of a privileged document or that the court will give no weight to that consideration.

The allied submission made by the GC related to the Client Reviewed Document. This is a letter from Andrew Rhodes, CEO of the GC, to non-lawyers at DCMS. Amongst other things, it recites passages from counsel’s advice. I set out below my conclusion that it should have been obvious that this letter was disclosed by mistake contrary to the view taken by BCLP and Mr Bryant.

Mr Bryant’s evidence is that the document was escalated to the core team for review and immediately discussed at some length. Mr Bryant says that he and his colleagues could not rule out disclosure by mistake but considered intentional disclosure more likely given the extent to which other privileged documents had been withheld. They did not consider that there was anything in the GC’s relationship with DCMS to give rise to an inherent common interest and saw nothing to indicate a limited waiver. Their “working hypothesis” was that the document could be shared with the client. They sought leading counsel’s advice but without joining him, at that stage, into the confidentiality ring so any advice must have been given without seeing the document. The document was then shown to a client representative about 90 minutes before the first notification from HL of inadvertent disclosure.

The emphasis given by the GC to this narrative was explicitly not to allege or imply any bad faith on the part of BCLP. However, it was said to illustrate that the approach to consideration of whether a document had been inadvertently disclosed was fundamentally wrong such that no or little weight should be given to BCLP’s reviews (at whatever level) as a pointer to the absence of obvious error.

Without going so far as to accept Ms Oppenheimer’s submission that equated suspicion with obviousness, it does seem to me that what BCLP did was not the best course. In my view, the error was or ought to have been obvious. But if it was not obvious at first review, there was at least enough to cause BCLP to consider the matter fully. I do not criticise that. The thrust of the GC’s submissions was that if it took lengthy discussion to reach a conclusion, the error should have been obvious but, as I have said, that would depart from the position contemplated in Al-Fayed in which the reasonable solicitor has given the matter careful consideration. However, at the end of that consideration, BCLP still had only a “working hypothesis” on which they then consulted counsel without counsel being able to see the document and then, on the basis of that unsatisfactory approach, they disclosed the document to the client. It would have been far better if doubt persisted, before or after consulting counsel, to have informed HL of the possible inadvertent disclosure.

Having said that, this was one instance – and indeed the only instance where a document was apparently subject to this lengthy review and shown to a client - and I cannot infer from it that there was a fundamentally wrong approach in BCLP’s privilege review.

In any case, I would not find in this case that there has been any conduct on the part of BCLP that would lead me to exercise my discretion not to permit the claimants to rely on documents that they might otherwise be entitled to rely on applying the Al-Fayed principles. As I will come to in the context of some specific groups of documents, there was reason for BCLP to form the view that privileged documents had been deliberately disclosed. It follows that a document that might or might not have been disclosed on that basis was one which they were entitled to consider, addressing their minds to whether it had obviously been disclosed in error.