March 15, 2018

Discolsure - Belhaj v DPP

Court considers issues relating to inadvertent disclosure

CPR r31.120 provides that "where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court". Caselaw has developed the principle that the court may prevent a document being used where a document has been made available for inspection "as a result of an obvious mistake". A mistake will be obvious if the solicitor receiving it appreciates that a mistake has been made or if it would be obvious to a reasonable solicitor in his position that a mistake has been made. In this case, the disclosing party had inadvertently provided unredacted material which should have been redacted on the basis of legal professional privilege. It was held on the facts that "The suggestion that [the defendant] would deliberately disclose part but not all of its legal advice in such sensitive proceedings is intrinsically counterintuitive and improbable".

Furthermore, since it was not contended that the defendant had engaged in any tactical deployment of the privileged legal advice in order to give only partial disclosure, the issue of cherry picking did not arise. Accordingly, no use could be made of the disputed documents.