Court allows defendants to use statements disclosed by mistake

Burton: Disclosure was apparently deliberate

The High Court has granted permission to defendants to use the contents of four otherwise privileged witness statements which were disclosed by the claimants’ solicitors by mistake

The defendants’ solicitors did not appreciate that a mistake had been made and Sir Michael Burton, sitting as a High Court judge, ruled that this would not have been obvious to a ‘reasonable’ solicitor.

The four statements were disclosed by the claimants’ solicitors, Highgate Hill, in the respective lists of documents, and then provided for inspection.

“Only just prior to the start of the trial was it asserted that this occurred as a result of an error by a junior solicitor, not picked up by anyone supervising, and objection was raised to the defendants relying on the documents,” the judge recounted in Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm).

The statements dated back to 2011 and 2012, and the defendants said they wanted to rely on them as they were far more likely to be an accurate reflection of the claimants’ evidence of key events than statements made some nine years later.

Sir Michael, who retired as a full-time judge in 2016 and now practises as an arbitrator and mediator from Littleton Chambers, said he was “entirely satisfied that a reasonable solicitor was entitled to assume that there had been an intentional disclosure of the relevant witness statements”.

He continued: “There seems to me to be nothing which would put the defendants’ solicitors on notice of any mistake, particularly in a case in which it could well have been that claimants might wish to disclose earlier witness statements to complete the chronology and/or to emphasise consistency, and the existence of such witness statements was expressly listed without objection to disclosure.

“The disclosure was apparently deliberate, and there was no reason or them to assume incompetence.”

There were, he went on, no other circumstances which would make it unjust or inequitable to grant permission.

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