Court proceedings are governed by the Civil Procedure Rules (CPR). Under the CPR, during the course of proceedings each party will be required to disclose documents which are in its control, including those which adversely affects their own case, adversely affects the other party’s case, or supports another party’s case.
However, there are certain documents which other parties are not entitled to see such as communications which are covered by legal professional privilege. There are two categories of legal professional privilege:
- Litigation privilege – Confidential communications between the lawyer, client and third party where litigation is in existence or litigation is anticipated and that the dominant purpose of the communication is related to the litigation
- Legal advice privilege – Confidential communications between the lawyer and client for the purposes of giving advice to the client on their rights, liabilities, obligations and remedies
What happens where a party inadvertently discloses a document that is privileged?
The Court of Appeal considered this question in the recent case of Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd. The starting point is to look at the CPR which states “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”. Of course, the court can prevent the use of privileged documents where disclosure of it is an obvious mistake (Al-Fayed v Commissioner of Police of the Metropolis (No 1))
In Atlantisrealm, during the disclosure exercise, the defendant inadvertently disclosed a privileged email. The defendant upon realising this, applied for an injunction, requiring the claimant to delete the email. The first solicitor who inspected the disclosed documents did not realise the defendant’s mistake, however it was later spotted by another solicitor upon further review. The Court of Appeal concluded that the defendant and its legal team had not intentionally decided to waive privilege.
The Court of Appeal’s decision confirms that if the first inspecting solicitor does not realise the mistake but it is later realised by someone else (but before the document is used) it becomes an obvious mistake and the court has discretion to preclude its use. This decision as well as Al-Fayed provides some comfort in that if a privileged document is ever accidently disclosed, the court can make an order to stop the opposing party from using it. However, it was emphasised in Atlantisrealm that should this scenario occur in the future, the parties should co-operate to amend the wrong in order to avoid unnecessary costs of such applications.
  EWCA Civ 1029
  EWCA Civ 780).
This blog post was written by Dalina Tran. For further information, please contact:
Anjali Chadda, legal director PSL, Commercial Dispute Resolution
T: 0161 836 7892