When Can A Party To Litigation Use A Document Disclosed By Mistake?

• Jurisdiction: European Union
• Law Firm: Norton Rose Fulbright
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Author: Ms Alexandra Redhead
• Published date: 12 April 2023

In Flowcrete UK Ltd v Vebro Polymers UK Ltd [2023] EWHC 22 (Comm), the High Court considered when it would be just and equitable to grant an injunction to restrain the use of privileged documents which had been disclosed by mistake. The judgment gives some useful guidance on when the court will refuse to help the disclosing party.

Background

The Claimants brought proceedings against a number of former employees who had set up a competing business. Disclosure took place and the Claimants alleged that the Defendants' disclosure was deficient. This was partly due to the disclosure of two PDF documents which appeared to be compilations of other documents that had not been disclosed elsewhere in the Defendants' disclosure. The Defendants responded that these two PDF documents were privileged and had been inadvertently disclosed. The Defendants applied for an injunction to prevent the Claimants using these documents.

The court's discretion

The Civil Procedure Rules provide that where a party inadvertently allows a privileged document to be inspected, the recipient may use it only with the court's permission. Additional wording has been added to this provision in para 19 of PD 57AD (which contains the newer rules on disclosure in the Business and Property Courts). However, in this judgment, the court confirmed that this additional wording has not changed the existing position. The principles governing inadvertent disclosure in circumstances where a receiving party has read the documents without being told they are privileged and been disclosed by mistake remain those set out in Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors [2002] EWCA Civ 780.

In summary, these principles provide that it is generally too late for the disclosing party to claim privilege in order to correct the mistake of inadvertent disclosure. However, the court can use its equitable jurisdiction and intervene to prevent use of privileged documents that were mistakenly disclosed in two situations:

1. where 'justice requires it', such as where inspection has been procured by fraud; and
2. where documents have been made available for inspection as a result of an 'obvious mistake'. An 'obvious mistake' is where documents are received by a solicitor and it would have been obvious to a reasonable solicitor that they were mistakenly disclosed.

In either situation, there must be no other circumstances which would make it unjust or inequitable to grant the relief.

Decision

The High Court...