I recently saw a LinkedIn comment from a litigant in person about being sent a privileged document. He had looked up CPR 31.20 and referred to Al-Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780. He asked on LinkedIn whether he should have deleted that email.
It reminded me of a time in my litigation practice when I was contacted directly by the insurer for the firm’s BACS details, and another email was attached to the message. Assuming it was for me, I opened it and discovered it was my opponent’s email to the insurer, explaining their prospects of success. I immediately closed the email, then called my opponent to inform her of what had happened.
Fortuitously, this occurred after the case had settled, and any disclosure that could have been useful to my client during the proceedings would not have been useful. That didn’t change the possible repercussions for the other side.
What if the document disclosed was useful during live proceedings and was subject to privilege?
Framework under CPR 31.20
CPR 31.3 specifically states that a document that has been disclosed (and, contrary to common misconception, disclosure is the act of making the existence of the document known to the other party, not the act of providing the document itself, which is the act of inspection) does not entitle the receiving party to inspect it if the disclosing party has a right or duty to withhold inspection.
A list of documents will specify the disclosure, including what is within the party’s control, possession, or right to inspect, and will identify which documents are being objected to, usually on the grounds of privilege.
This is where it will usually be abundantly clear that you are only going to be allowed to inspect documents that have been both disclosed and for which inspection has not been objected to
CPR 31.20 provides that where a party inadvertently allows a privileged document to be inspected, the party who has inspected it may only use it with the permission of the court. So that is the starting point. There needs to be an application by the recipient.
Prior to CPR 31.20, which introduced this procedural shield, the common law approach would most certainly have been that the party who has inadvertently provided the privileged disclosure for inspection would have needed to seek procedural relief by way of an injunction to prevent use of the document (Goddard v Nationwide Building Society [1987] QB 670).
Al-Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780
In Al-Fayed, the Defendant Police inadvertently disclosed legally privileged counsel’s opinions during document inspection in civil proceedings. The Claimants copied and relied on the documents, and the Defendants sought an injunction (as per Goddard). At first instance, the Judge granted relief, holding that the disclosure was an “obvious mistake” which a reasonable solicitor should have recognised, thereby justifying restraining their use.
The Court of Appeal overturned that decision. It held that although the Courts have jurisdiction under CPR 31.20 to restrain the use of mistakenly disclosed privileged documents, this will generally occur only where the mistake was obvious.
The test was whether it was either actually appreciated or objectively apparent to a reasonable solicitor.
On the facts, it was not obvious that the disclosure was mistaken. Previously, the opinions were argued to be irrelevant, and once they appeared in the disclosure list index and were made available for inspection, it was reasonable for the Claimants to believe that their relevance had changed. Accordingly, the Court of Appeal found it was not unjust for the Claimants to use them.
What this case made clear was that the question was fact-sensitive and would be considered against the standards of what a reasonable and prudent lawyer would believe regarding whether it was a mistake or not.
So when it comes to CPR 31.10, applying Al-Fayed:-
- Before inspection is provided, the disclosing party needs to make sure they are allowing inspection only of documents that they cannot hold a right or duty to restrict inspection. Disclosing and then providing a specification of a document could be treated as having authority to waive privilege (even though it is a party’s right to waive privilege, not their lawyers.
- When disclosure occurs, lawyers inspecting do not owe a duty of care to the opposing party. The receiving lawyer can usually assume that privilege is waived and documents are intentionally disclosed. Once documents are provided and inspection has taken place, it’s typically too late to reclaim privilege through injunctive relief.
- However, as per CPR 31.20, the receiving lawyer must make an application for permission to rely on it.
Best practice
How do the authorities assist us in being able to determine how to deal with these situations?
In the case of Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd [2017] EWCA Civ 1029, where the disclosure process was prepared by a junior lawyer to show the deferred matters to senior lawyers. The email was disclosed in error, and the receiving party (upon being told of the error) refused to do so. The Court of Appeal determined that an inadvertently disclosed privileged email was an obvious mistake for the purposes of CPR r 31.20. The Court of Appeal also said that the disclosure and inspection process in common law hinges on parties and lawyers acting honestly, even if against their interests. The duty of honesty applies to both parties who inspect and disclose documents. Resolving such disputes should not burden parties or courts. Therefore, whilst the starting point for the recipient lawyer to presume privilege was waived, honesty and cooperation, rather than exploitation, should be adopted when it is clearly a mistake.
In Property Alliance Group Ltd v Royal Bank of Scotland plc (No 3) [2015] EWHC 3341 (Ch), the High Court also held that permission under CPR r 31.20 is required to use inadvertently disclosed privileged material, even where it appears to reveal serious non‑disclosure, and criticised the premature use of such material without the court’s permission.
What if a party uses the inadvertent disclosure before permission is sought? In Property Alliance Group Ltd v Royal Bank of Scotland plc (No 3) [2015] EWHC 3341 (Ch), Birss J held that CPR 31.20 permission was needed to use inadvertently disclosed privileged material, even when such disclosure reveals serious non-disclosure conduct. In this circumstance, the utilisation of such disclosure before seeking permission was heavily criticised.
Concluding remarks
The law on inadvertent disclosure is based on fairness. CPR 31.20 offers a helpful procedure, but it does not mean that every single inadvertent disclosure will be protected.
Ultimately, the Court aims to fairly balance protecting privilege, preventing abuse, and ensuring fair litigation. In most cases, lawyers who notice a clear mistake early and work together professionally can avoid the need for the Court to get involved. Regardless, the party cannot rely on said document if the other party objects, without the court’s permission.