Two issues arose to be decided in this case:

  1. Were the defendants entitled to claim legal advice privilege? Chief Master Marsh held that they were not, because communications were not made with the "client". In so doing, he followed the recent Court of Appeal decision of SFO v Eurasian Natural Resources Corpn (see Weekly Update 31/18), which in turn followed the earlier Court of Appeal decision in Three Rivers (No.5) which held that not all officers and employees (and ex-employees) within a company should be treated as the "client" for the purposes of legal advice privilege. The Court of Appeal had also expressed some dissatisfaction with the Three Rivers position in the SFO decision, but that was not referred to in this case.In deciding this issue, Chief Master Marsh also stated that "I can see that if more than one party is claiming privilege, it is convenient for the witness statement to be provided by the solicitor who acts for all the relevant parties. It is of note, however, that a disclosure statement must be signed by the party concerned – see paragraph 4 of Practice Direction 31A. It is not permissible for it to be signed by lawyers acting on behalf of that party."
  2. Were the defendants entitled to relief under CPR r31.19(20), preventing use of a document which was disclosed by mistake and was said to be subject to litigation privilege?

The key issue here was whether the defendants' mistake in providing the privileged document for inspection would have been obvious to the solicitor reviewing it. Even if it was, though, there is no automatic right to relief.

In this case, the name of the document in its metadata proved important: "It seems to me that the description of a document that is provided (whether in the metadata or in a more direct form) is of significance. Furthermore, a reasonable solicitor would, and should, when considering the Document, having been put on notice that it might be privileged, have undertaken a check of the metadata. The metadata in question is high level and easily accessible. One the metadata is revealed, the date of the document, 2015, and its description as a 'statement' would have spoken of privilege in clear terms".