Mohamad Al Fayed v The Commissioner of Police of the Metropolis: CA 29 May 2002

During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also sought public interest immunity.
Held: A solicitor considering documents released to him owes no duty to the disclosing party. Once disclosure has in fact been made, it is too late to seek an injunction to protect the document against use, save in the case of an obvious mistake. The court is exercising an equitable jurisdiction, and there are no rigid rules. There had been discussions about the disclosure or withholding of different documents on different grounds, and the mistake need not have been obvious. The injunction was discharged.
Clarke LJ set out the principles applicable: ‘In our judgment the following principles can be derived from those cases:
i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.
ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.
iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived.
iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.
v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.
vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:
a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;
and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.
viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.
ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.
x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.’
Lord Justice Walker, Lord Phillips MR, Clarke LJ
Gazette 01-Aug-2002, [2002] EWCA Civ 780, A2/2002/0758
Bailii
Civil Procedure Rules 31.2
England and Wales
Citing:
CitedGuinness Peat Properties Ltd v Fitzroy Robinson Partnership CA 1987
Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer . .
CitedDerby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
CitedPizzey v Ford Motor Co Ltd CA 10-Mar-1993
Reports which had been mistakenly disclosed by a solicitor were admitted in evidence. . .
CitedInternational Business Machines Corporation v Phoenix International (Computers) Ltd ChD 28-Jul-1994
The defendant had, by mistake, included in bundles of documents produced on discovery opinions and other legally privileged material.
Held: A competent solicitor would see immediately that these had been disclosed by mistake, and an order was . .
CitedBreeze v John Stacey and Sons Ltd CA 21-Jun-1999
The introduction of the Civil Procedures Rules has done nothing to change the rules or principles affecting the receipt of privileged and confidence protected documents inadvertently disclosed to a party. He had no obligation to examine them . .

Cited by:
CitedMMI Research Ltd v Cellxion Ltd and Others ChD 24-Sep-2007
The claimant had accidentally disclosed a confidential document it should not have done. The defendant argued that there had been a waiver of privilege.
Held: Applying Al Fayed, it could not in these circumstances be said that the mistake was . .

These lists may be incomplete.
Updated: 08 January 2021; Ref: scu.171335