Court of Appeal glosses inadvertent disclosure rules

19/07/17

The rules on inadvertent disclosure of privileged documents focus on whether there is an obvious mistake. But what happens when one solicitor does not think there is a mistake but a second solicitor takes a contrary view?

In Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd a privileged document was disclosed by mistake. The assistant solicitor who reviewed it gave evidence, which was accepted, that he did not think it was disclosed by mistake. Some weeks later, he showed the document to the senior partner of the firm. Although the senior partner also put in evidence to the effect that he did not consider there was a mistake, the Court of Appeal rejected that evidence and held that the senior partner must have been aware that there was a mistake.  The “two solicitors” problem has not previously arisen in the authorities. Jackson LJ said:

“In my view, the facts of this case make it necessary to add a modest gloss to the principles formulated by the Court of Appeal in Al-Fayed and applied in Rawlinson. 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. “

Thus the court allowed the appeal and granted an injunction preventing use of the privileged document. 

The judgment appears here.