What happens if a party – despite its best intentions and efforts – inadvertently includes privileged documents in its disclosure?

The Civil Procedure Rules (CPR) provide that if a party is on actual or constructive knowledge of the mistake then the receiving party must: (a) refrain from reading the document; (b) tell the disclosing party; and (c) either return or destroy the document. In certain circumstances it might be possible for the disclosing party to obtain an injunction preventing the use of the documents by the receiving party. However, the bar for such injunctions is set high, particularly if the document in question reveals potential wrongdoing on the part of the disclosing party. A recent decision of the Commercial Court¹, in which the Judge refused an injunction preventing the claimants from using inadvertently disclosed documents, illustrates several points.

The general rule

The CPR include an express provision dealing with inadvertent disclosure². The starting point is that if the receiving party is told or has reason to suspect inadvertent disclosure then "that party shall not read the document… shall promptly notify the party who produced it" and then either return it to the producing party or destroy it. The full rule reads as follows:

"Where a party is told, or has reason to suspect, that a document has been produced to it inadvertently, that party shall not read the document and shall promptly notify the party who produced it to him. If that party confirms that the document was produced inadvertently, the receiving party shall, unless on application the court otherwise orders, either return it or destroy it, as directed by the producing party, without reading it."

The CPR also provides that, in the case of inadvertent disclosure, "the party who has received the document may use it or its contents only with the permission of the court". In considering whether to grant such permission, the Court will apply the following guidelines³:

1. a solicitor who has received documents for inspection does not owe a duty of care to the disclosing party, and is generally entitled to assume that any privilege that might have been claimed in respect of such documents has been waived;
2. where inspection of privileged documents has been given by mistake, it will generally be too late to correct the mistake by obtaining injunctive relief;
3. where justice requires, such as where inspection of the documents has been procured by fraud or is an "obvious mistake", the Court has the ability to intervene to prevent the use of privileged documents disclosed by mistake;
4. it will likely be considered an obvious mistake where:
1. the solicitor is cognisant of the fact that a mistake has been made before making use of the documents; or
2. it would be obvious to a reasonable solicitor that a mistake had been made,

and, in either case, there must be no other circumstances that would deem it unjust or inequitable to grant relief.

Where an inadvertently disclosed document reveals wrongdoing on the part of the disclosing party, the Court may refuse injunctive relief even if it determines there was an obvious mistake. In these circumstances, the Court considers whether it would be "unconscionable" for the receiving party to rely on the document⁴. If it would not be unconscionable then it would not be appropriate to grant an injunction.

Recent decision

In Flowcrete⁵, the Judge refused an injunction, saying that the defendants had not evidenced that the disclosure was inadvertent. He also said that, even if he had found otherwise, he could not grant an injunction for the reasons set out below.

a. The mistake was not obvious

The disclosure in this case included two long PDFs comprising multiple documents that totalled 800 pages and each document in the PDFs was headed "disclosureexercise1@outlook.com". The disputed documents were included in various places within the PDF files, and one was disclosed a second time in native form. The Judge considered that neither provision of the PDF compilations (as opposed to native emails and their attachments), nor the header (arguably indicating the documents were in a form that was not ready for inspection), were enough to alert the claimants to the fact that the PDFs might contain privileged material that had been disclosed by mistake.

The defendants argued that the inherent nature of the documents indicated that they were disclosed by mistake, since they related to the preparation of witness evidence. However, the Judge was not persuaded by this. The documents were not marked privileged, none of them were communications involving lawyers and they did not appear to be of a type that was obviously privileged.

b. Unjust and inequitable

Whether or not the mistake was obvious in this case, the Judge held that it would be unjust and inequitable to grant the injunction sought. A combination of factors was at play here, including the defendants' delay and lack of specificity in the claim to privilege. Further, certain of the documents called into question the independence of a witness' evidence, which of itself would have constituted unconscionable conduct justifying the refusal of the injunction.

What have we learnt?

• Composite documents are liable to cause difficulties

Processing and reviewing composite documents is always ripe for creating confusion and difficulty. Each document (or its family, in the case of emails with attachments) is usually disclosed separately.

• Be specific, clear and quick when claiming privilege

When the defendants first claimed privilege, they did so in relation to the entirety of both long composite PDFs and failed to give any proper explanation of the basis for their claim. This initial claim was made around two months after the documents were disclosed. The defendants took a further month and a half to narrow their claim to specific documents and provide an explanation. They finally applied for an injunction nearly four months after the original disclosure.

In relation to the delay, although the Judge found that it would not be enough to justify refusing the injunction, it must be remembered that injunctions are equitable relief and so subject to the maxim that delay defeats equity.

• Do not expect the Court to protect documents that evidence wrongdoing

Some of the documents the application related to contained evidence of potential wrongdoing or inappropriate conduct by the defendants. Although the contents of the documents are not discussed in the judgment, it appears that they brought into question whether the witness evidence of one defendant had been influenced by the other defendants. The Judge considered there to be enough evidence of unconscionable conduct in relation to the preparation of the witness evidence to justify refusing injunctive relief even if he had otherwise been persuaded to grant such relief.

Thank you to Alice Culkin-Tamayo for contributing to this article.

1. Flowcrete UK Limited v Vebro Polymers UK Limited [2023] EWHC 22 (Comm).
2. Paragraph 19 of Practice Direction 57AD for claims in the Business and Property Courts; CPR 31.20 for other claims.
3. As set out in Al Fayed v Commissioner of the Police of the Metropolis [2002] EWCA Civ 780, which case considered CPR 31.20.
4. Pickett v Balkind [2022] EWHC 2226 (TCC)
5. See footnote 1.