Tchenguiz: Court of Appeal clarifies law on inadvertent disclosure

01/08/14

In the latest judgment in the Tchenguiz litigation against the Serious Fraud Office, the Court of Appeal  overturned a series of rulings of Mr Justice Eder  on inadvertent disclosure of privileged documents, where the judge had held that  SFO errors in giving disclosure would have been obvious to a reasonable solicitor.  Moore Bick LJ said the judge had wrongly  focused on whether  it was obvious that  the documents were privileged, rather than whether disclosure was given by mistake.

The court also considered the law on inadvertent disclosure of public interest immunity documents, where the Court of Appeal in Al Fayed v  Commissioner  of Police for the Metropolis (Lord Phillips MR, Walker and Clarke LJJ) had said that the principles were the same as in the case of inadvertent disclosure of privileged documents.  Although Moore-Bick LJ accepted that this was part of the ratio in Al Fayed, he said that the Court of Appeal could depart from that authority as it could not be reconciled with other authority on public interest immunity and the point had not been fully argued in Al Fayed.

The judgment is here.