Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd [2017] EWCA Civ 1029 And Microgeneration Technologies Ltd v RAE Contracting Ltd & Ors [2017] EWHC 1856 (Ch)

Inadvertent Disclosure Of Privileged Documents

CPR r31.20 provides that, where a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it (or its contents) only with the permission of the Court. Case law has clarified that, in the absence of fraud, the Court may prevent the use of privileged documents only if there has been an "obvious mistake" in making such documents available for inspection. As instances of actual fraud are rare, disputes most commonly arise where one party argues that the privileged material was obviously disclosed by mistake and the other party states it believed that privilege had been waived.

The principles for determining whether the Court will restrain the use of a privileged document which has been disclosed are set out in Al Fayed & Ors v Commissioner for Police for the Metropolis & Ors [2002] EWCA Civ 780 (paragraph 16):

"(iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived....

(v) ..., the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.

(vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.

(vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

the solicitor appreciates that a mistake has been made before making some use of the documents; or it would be obvious to a reasonable solicitor in his position that a mistake has been made; and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief. (vii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.

(ix) In both the cases identified in (vii)...