UK: Risks In Accidentally Disclosing Privileged Documents

A recent decision has highlighted the risks of inadvertently disclosing privileged documents to the other side. Even though it was accepted by both parties that the document was privileged and was disclosed by mistake, the court was unsympathetic and held that privilege had been waived since the mistake was not obvious to the receiving party.

The decision provides a timely reminder that a party who has mistakenly included a privileged document within their disclosure cannot expect the court to come to their rescue and uphold that privilege - unless it was very obvious that a mistake had been made in disclosing the document.

The claimant sought an order preventing further use of a document in patent proceedings on the grounds that it was a privileged document disclosed by mistake. However, in dismissing the application, the court held:

• There had been a waiver of privilege.

• The receiving solicitors were not aware a mistake had been made in disclosing the document

• It would not have been obvious to a reasonable solicitor that a mistake had been made.

The claimant had brought proceedings against the fifth defendant in the German patents court. Before the proceedings settled, the claimant brought proceedings in the UK, alleging patent infringement against the first four defendants. They denied infringement and sought to attack the patent.

The standard disclosure list included an English document (together with a German document, understood to be a translation of it), which was believed to have been filed by the claimant in the German proceedings. Accordingly, copies of both documents were disclosed to the defendants. A few months later, the claimant’s solicitor spoke to its German counterpart and discovered that the English document was a draft pleadings which had never been filed at the German patents court.

The claimant sought an order preventing further use of the document on the grounds that it was a privileged document disclosed by mistake.

The claimant’s position was that the defendant’s solicitor must have appreciated that the document had been disclosed by mistake. In the alternative, this would have been obvious to a reasonable solicitor.

The defendant’s response was to undertake that when the English document had been listed and received, it had not realised that such a mistake had been made.

The Court held:

• In the circumstances, there had been a waiver of privilege and there were no other grounds preventing the defendants from relying on the document.

• On the evidence, it could not be established that the receiving solicitors had realised that a mistake had been made.

• The material received would not have made it obvious to a reasonable solicitor that a mistake had been made.

• It had not been obvious to the claimant’s solicitor on the face of the documents, but only when enquiries had been made of its German counterpart). If it had not been obvious to the claimant’s solicitor, it would have been difficult to say that it would have been obvious to the defendants’ solicitor.

The case highlights the key points to consider:

• The test in determining whether it would have been obvious to a reasonable solicitor that a mistake had been made, was not whether, having done a detailed comparison of the documents and made further enquiries, the mistake was apparent, but rather whether the mistake was obvious.

• The danger of disclosing documents by mistake!

For further reading please go to: MMI Research Ltd v Cellxion Ltd and others [2007] All ER (D) 142 (Sep)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 29/11/2007.