Litigators should sort out the inadvertent disclosure of privileged documents in a grown-up manner without taking up the time of the court, the Court of Appeal has ruled as it granted an order to delete a privileged email that had been accidentally handed over.
Lord Justice Jackson said that “even with the help of sophisticated software”, mistakes in disclosure were “bound to happen occasionally”.
“If the mistake is obvious, the lawyers on both sides should co-operate to put matters right as soon as possible,” he said.
“The disclosure or discovery procedure in any common law jurisdiction depends upon the parties and their lawyers acting honestly, even when that is against a party’s interest. The duty of honesty rests upon the party inspecting documents as well as the party disclosing documents.
“It should not be necessary for either the parties or the courts to devote their resources to resolving disputes of this nature between solicitors.”
Jackson LJ made the comments in Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd  EWCA Civ 1029 , the substantive action in which involves a claim for breach of warranty over the purchase of two of the defendant’s subsidiaries.
The privileged email from the defendant’s then solicitors, Shepherd & Wedderburn, was one out of a disclosure comprising a total of 4,891 documents made by its current solicitors, Goodman Derrick.
Jackson LJ observed that, whilst the email was “not fatal” to the defendant’s case, it provided “useful ammunition” for the claimant.
The defendant sought an order that the email be deleted from the disclosure. At first instance, HH Judge Klein, sitting in the Technology and Construction Court at Leeds, held that the defendant had not established that the disclosure was mistaken
He ruled: “I am not satisfied, on the limited evidence on the defendant’s behalf, that, in this case, there was not a deliberate and conscious (informed) decision to disclose, which, on reflection [by Goodman Derrick], was a disclosure made in error. So to my mind the application fails on this basis.”
Jackson LJ said: “It is perfectly clear what happened. Neither Mr Cook [of Goodman Derrick], nor the relevant partner, nor the client ever took a considered decision to waive privilege in respect of the March email…
“I therefore conclude, contrary to the judge, that this was a case of inadvertent disclosure within the meaning of CPR rule 31.20.”
Further, Jackson LJ said, it was clear from the evidence that the claimant’s solicitors, Newtons, appreciated it was a mistake.
In Al-Fayed & Ors v The Commissioner of Police for the Metropolis & Ors  EWCA Civ 780 , the Court of Appeal formulated the principles for applying rule 31.20, and then applied them in Rawlinson & Hunter Trustees SA & Ors v Director of the Serious Fraud Office (No2)  EWCA Civ 1129 .
The circumstances in this case required a “modest gloss” to them, Jackson LJ said.
“If the inspecting solicitor does not spot the mistake, but refers the document to a more percipient colleague who does spot the mistake before use is made of the document, then the court may grant relief. That becomes a case of obvious mistake.
“In the present case there is very little evidence as to the internal dealings within Newtons. Such evidence as there is leads to the conclusion that Newtons must have actually spotted the mistake before putting the March email to use. I therefore come to the opposite conclusion from the judge.”
As a result, he said it would not be unjust if the claimant was not permitted to use the email at trial.
“It is clear from [HHJ Klein’s judgment] that if the judge had discretion to restrain the use of the March email, he would have exercised that discretion in favour of ILI.
“In my view, this court should approach the exercise of discretion in the same way as the judge would have done.”