Court orders injunction against party that sought to use privileged document disclosed by error

Rolls Building: not a conclusion a reasonable solicitor would have reached

The High Court has granted an injunction against a party that was well aware that a document it was using was a privileged letter accidentally disclosed by the other side.

The claimant in Microgeneration Technologies Ltd v RAE Contracting Ltd and Ors [2017] EWHC 1856 (Ch) was advised by a non-solicitor insolvency specialist, but the court said the test was whether it was obvious to a reasonable solicitor that a mistake had been made.

The ruling followed an interlocutory hearing in January where the defendants were represented pro bono by counsel David Peachey through the Chancery Bar Litigant in Person Support Scheme (CLIPS), under which his work was limited to the day in question.

Afterwards, he provided them with a standard form CLIPS letter outlining his advice prior to the hearing, what had happened at the hearing and his advice as to what they should do next.

Subsequently one of the defendants disclosed the letter by mistake as an attachment to a witness statement; as indicated by the statement, he had meant to include Mr Peachey’s contemporaneous, handwritten note just of the hearing.

When the defendant realised his mistake, he put the claimant – advised by Peter Murray of Insolvency & Law, which is not a law firm – on notice that it intended to seek an injunction to restrain its use.

The claimant reserved its position and said it would revert, but instead used the CLIPS letter in a subsequent witness statement.

Stuart Isaacs QC, sitting as a deputy High Court judge in the Companies Court in the Rolls Building, dismissed the argument that it would not have been obvious to a reasonable solicitor in Mr Murray’s position that the disclosure was a mistake.

“Mr Murray, who is not a solicitor, did not in my judgment give detailed consideration to the question of whether the CLIPS letter had been disclosed by mistake and conclude that it had not been…

“Even If he had concluded after detailed consideration that privilege over the CLIPS letter had been waived, that is not a conclusion that I consider would have been reached by a reasonable solicitor in Mr Murray’s position.

“In this regard, the [claimant] accepted that no different test was to be applied by reason of the fact that Mr Murray is not himself a solicitor.”

Mr Isaacs granted the injunction to restrain the claimant from using the CLIPS letter, together with an order for the delivery up or destruction of all copies.

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