High Court Refuses Injunction To Prevent Use Of Privileged Material Disclosed In Error, Where It Revealed Potential Serious Breach Of Court Guidance

• Published date: 05 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The High Court has refused to grant an injunction to prevent a party using privileged material in a letter exhibited to an opponent's witness statement filed in support of an interim application, where the material had been included in error but the error was not obvious to the recipient: Pickett v Balkind [2022] EWHC 2226 (TCC).

The decision illustrates that, even if an injunction would otherwise be warranted where there was no obvious mistake, the court may refuse to grant an injunction where the privileged material reveals some sort of wrong on the part of the disclosing party - here a potential serious breach of court guidance relating to the preparation of experts' joint statements. That appears to be the case whether or not there is sufficiently serious misconduct to mean that the material was not privileged in the first place under the "iniquity principle" (ie that privilege does not apply to protect communications made in furtherance of a crime, fraud or equivalent conduct). It is perhaps not surprising, given that an injunction is a discretionary remedy and may be refused where the claimant does not approach the court with "clean hands".

The case is also a reminder that legal advisors must be careful not to interfere in the preparation of experts' joint statements. The lawyers' role is limited to identifying issues which the statement should address; they should not invite the experts to consider amendments to the draft statement save in exceptional circumstances, where there are serious concerns that its terms may be unclear or misleading - in which case those concerns should be raised with all experts involved in the joint statement.

Finally, on a separate point, the decision suggests that where a party serves expert evidence which refers to and relies on privileged material, that will act as an immediate waiver of privilege even though the expert has not yet been called to give oral evidence.

Background

The underlying dispute was a tree root subsidence claim relating to residential property in Sutton, Surrey. The parties each had permission to rely on expert evidence from two experts, an arboriculturalist and a structural engineer. Directions were given for the filing of joint statements with individual experts' reports to follow.

In May 2022 the claimant's solicitors informed the defendant's solicitors that the claimant's structural engineer, Mr Cutting, would not be available to give evidence at the trial that was then listed for mid-July 2022 as he would be recovering from...