Court of Appeal considers inadvertent disclosure in a "two solicitors" situation

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. Caselaw has clarified that, in the absence of fraud, the court may grant an injunction only if there has been an "obvious mistake", which in turn means either the solicitor who received the document appreciated a mistake has been made or it would have been obvious to a reasonable solicitor in his position that a mistake had been made. In Rawlinson & Hunter v Director of the SFO, the Moore-Bick LJ said that "once it is accepted that the person who inspected a document did not realise that it had been disclosed by mistake, despite being a qualified lawyer, it is a strong thing for the judge to hold that the mistake was obvious". Just because a disclosed document had obviously been privileged did not mean that it was also obvious that a mistake had been made in disclosing the document. Some documents may be so sensitive that it will be obvious that a mistake has been made, but that will often not be the case.

In this case, a privileged document was disclosed by the defendant to the claimant because it had not been flagged as privileged by a junior member of the defendant's review team, and so was not referred to the more senior lawyer working on the case. At first instance, the judge accepted that the claimant's solicitor who had reviewed the disclosed document had not appreciated that it had been disclosed by mistake and refused to order the deletion of the privileged document.

On appeal, the Court of Appeal accepted that it could not go behind this finding of fact. However, in this case, the solicitor who had reviewed the privileged document had then passed it on to a more senior colleague. This was therefore a "two solicitors" situation, which has not previously been considered in the authorities.

The Court of Appeal held that the more senior colleague had appreciated that the document had been disclosed by mistake (he had drawn it to the attention of the defendant's more senior solicitor in the belief that the latter was unaware of it). It went on to add a "gloss" to the principles laid down in earlier caselaw: "If the inspecting solicitor does not spot the mistake, but refers the document to a more percipient colleague who does spot the mistake before use is made of the document, then the court may grant relief. That becomes a case of obvious mistake".

COMMENT: As in Rawlinson & Hunter, the Court of Appeal's decision again concentrates on the recipient's actual knowledge (when deciding whether an obvious mistake was made by the disclosing party), rather than on what the recipient ought to have known about the disclosing party's intentions. The decision makes clear that it will be the knowledge of all the members of the reviewing team which will be relevant, rather than simply the first solicitor to look at the inadvertently disclosed document, where that document has been shown to other members of the team.