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Inadvertent disclosure: Court of Appeal clarifies principles governing unintentional disclosure of privileged material

Atlantisrealm Limited v Intelligent Land Investments (Renewable Energy) Limited [2017] EWCA Civ 1029

The Court of Appeal has provided useful clarification of the application of existing principles governing mistaken disclosure of privileged material.

In Atlantisrealm Limited v Intelligent Land Investments (Renewable Energy) Limited [2017] EWCA Civ 1029, the Court of Appeal allowed the defendants' appeal against an interlocutory decision refusing to order the deletion of an email protected by legal professional privilege. In so doing, Jackson LJ provided useful clarification of the application of the existing principles surrounding mistaken disclosure of privileged material.

Inadvertent disclosure

Rule 31.20 of the Civil Procedure Rules ('CPR') provides that: "Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court." Given that the disclosing party may not initially realise its mistake, CPR 31.20 therefore requires inspecting parties to make a judgment call: was the document disclosed by accident, or was privilege deliberately waived?

Al-Fayed & Ors v The Commissioner of Police for the Metropolis & Ors [2002] EWCA Civ 780 set out a number of principles to aid interpretation of CPR 31.20. In particular, in the absence of fraud, the court may prevent a party from using a privileged document if it was made available for inspection as a result of an "obvious mistake". A mistake is likely to be considered obvious where the inspecting solicitor appreciated that a mistake was made, or if it would be obvious to a reasonable solicitor in his position that a mistake was made. The fact that a document is obviously privileged, however, does not necessarily make it obvious that it was disclosed mistakenly (Rawlinson & Hunter v Director of the SFO [2014] EWCA Civ 1129).

Facts

The defendants in Atlantisrealm, Intelligent Land Investments Limited ('ILI'), were appealing to the Court of Appeal against an interlocutory judgment refusing to order the deletion of a privileged email. ILI claimed that the email had been disclosed to the claimants, Atlantisrealm Limited ('Atlantisrealm') by mistake, and the Court of Appeal was tasked with determining whether the interlocutory judge had correctly applied the existing principles governing inadvertent disclosure.

The underlying substantive dispute concerned an alleged breach of warranty by ILI under a share purchase agreement. ILI had sold two of its subsidiary companies, which were developing windfarms in Scotland, to Atlantisrealm. Atlantisrealm claimed that ILI had warranted that certain rights of way necessary to deliver wind turbines were in place, and that it had subsequently breached those warranties. ILI denied that any warranty had been breached.

The substantive claim reached the disclosure stage in Autumn 2016. ILI's list of documents contained a number of emails between ILI and its solicitors. One of the disclosed emails, although not fatal to ILI's defence, provided useful ammunition for Atlantisrealm's case as it referred to the construction of the share purchase agreement warranties.

When Atlantisrealm's solicitor saw the privileged email, he pointed it out to ILI's solicitor. ILI's solicitor responded that the email had been disclosed by mistake and requested that it be deleted. Atlantisrealm's solicitor refused, arguing that privilege of the document had been waived.

The decision

Jackson LJ firstly considered whether the email had been inadvertently disclosed, and was satisfied that it had indeed been disclosed by mistake. ILI's disclosure team had initially consisted of a number of junior lawyers and trainees who had been tasked with conducting a 'preliminary sift' of nearly 5000 documents. They were to identify those which were obviously disclosable or obviously privileged, and to flag documents which they were not sure about for referral to a more senior solicitor. In this case, Jackson LJ was satisfied that a junior lawyer had mistakenly failed to flag the privileged email in question, which had resulted in it being disclosed.

Jackson LJ went on to determine whether the mistake was obvious to Atlantisrealm's solicitors. In this case, the privileged email had initially been inspected by a relatively junior solicitor.  The court accepted that he had genuinely not appreciated that the email had been disclosed by mistake. However, the decision to circulate the email to Atlantisrealm and refusal to delete the email was made by a more senior solicitor who the initial reviewer had shown the email to. The facts of the case therefore made it necessary to add a "modest gloss" to the principles formulated by the Court of Appeal in Al-Fayed and applied in Rawlinson in relation to CPR 31.20. The gloss extended the principle to a "two solicitor situation", so that if the inspecting solicitor is unaware of the mistake, but a colleague spots it before use is made of the privileged document, it becomes an "obvious mistake" and hence the court has discretion to prohibit the use of the document.

On this basis the Court of Appeal allowed ILI's appeal.

Comments

Atlantisrealm clarifies the position where more than one solicitor inspects disclosed privileged material. Although the first solicitor to inspect ILI’s disclosure in Atlantisrealm had genuinely considered that the privileged email was not disclosed mistakenly, the Court of Appeal was satisfied that the second solicitor was aware of the mistake. The knowledge of all inspecting solicitors will therefore be taken into account when deciding whether inadvertently disclosed privileged material can be used, and not just the knowledge of the initial inspector.

Equally as pertinent are Jackson LJ’s comments concerning the way cases of inadvertent disclosure should be dealt with. Jackson LJ emphasised the importance of a bilateral duty of honesty, stating that it is for both parties to act honestly during the disclosure process, “even when that is against a party’s interest.” When errors occur, it is for the lawyers on both sides to co-operate to put matters right. Jackson LJ was unequivocal that the courts should not be devoting resources to resolving disputes of this nature, signalling a warning against parties litigating inadvertent disclosure disputes.

In light of the heightened risk of mistaken disclosure in the electronic age, with disclosure often involving large amounts of documents, disclosing parties should therefore ensure that rigorous review processes are in place to minimise the risk of mistakes occurring. When mistakes do happen, it will rest on both parties to act in an honest and co-operative way: the courts are unlikely to take kindly to parties bringing such disagreements before judges in the future.

Contact

For further information, please contact Emma Smith, Trainee Solicitor at emma.smith@dwf.law

By Emma Smith

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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