Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors

Where a privileged document is inadvertently made available for inspection, the court must decide under CPR rule 31.20, and in its equitable jurisdiction, what is just and equitable in all the circumstances. Relief may be granted where the recipient solicitor actually appreciated the error, or where the error would have been obvious to a reasonable solicitor in that position. The test is one of an obvious mistake. It does not require proof of a duty of care owed by the receiving solicitor, and it should not be heightened to a test of a perfectly obvious mistake.

The same approach applies to documents protected by legal professional privilege and to documents in respect of which public interest immunity could have been claimed. The assessment is fact-sensitive and admits no rigid rules.

In a false-imprisonment action arising from arrests made during a police investigation, the respondents gave standard disclosure. Two later opinions of counsel, obtained in connection with the decision not to charge the appellants, were included among the documents supplied for inspection.

The opinions were originally protected by legal professional privilege and, the respondents contended, by class public interest immunity. The respondents said that their inclusion was inadvertent. Curtis J ordered their return and restrained their use. The appellants appealed.

The central issue was whether the disclosure was an obvious mistake to a reasonable solicitor receiving the documents and, consequently, whether the court should restrain their use or refuse permission under CPR rule 31.20.

1. The court, in a judgment given by Clarke LJ, allowed the appeal. It discharged the injunction and return order made by Curtis J, and set aside the refusal of permission under CPR rule 31.20.

2. A solicitor receiving documents on inspection ordinarily may assume that any privilege has been waived. The disclosing party may nevertheless obtain relief where justice requires, including where inspection was procured by fraud or the documents were supplied by an obvious mistake. The court adopted the objective test stated in Pizzey v Ford Motor Co, The Times 8 March 1993, and confirmed in Breeze v John Stacey and Sons Ltd, unreported, 21 June 1999. The question is whether the recipient actually appreciated the mistake, or whether it would have been obvious to a reasonable solicitor in that position.

3. The test is not whether the recipient owed a duty of care to the disclosing party. Nor should “obvious” be qualified as “perfectly” obvious. Honest and detailed consideration by the recipient solicitor is a significant, but not conclusive, indication that the mistake was not obvious. The court retains an equitable discretion, and countervailing circumstances may make relief unjust even where an error was obvious.

4. The same principles apply where the document was protected by legal professional privilege or was capable of attracting public interest immunity. The discretion under CPR rule 31.20 should likewise be exercised according to what is just and equitable.

5. On the facts, the reasonable solicitor could properly infer that the opinions had deliberately been disclosed. The earlier objection had rested on relevance rather than privilege; the opinions appeared relevant; the list made no applicable privilege claim; the papers appeared checked and correctly indexed; and further documents had been disclosed after proceedings began. The circumstances differed materially from International Business Machines Corporation v Phoenix International (Computers) Ltd, [1995] 1 All ER 413.

6. The mistake was therefore not obvious. The appellants could make proper use of the opinions because, as between the parties, they were no longer protected by legal professional privilege or public interest immunity. The trial judge retained ordinary case-management powers over their use and deployment.

• Court of Appeal (Civil Division): Allowed the appeal in [2002] EWCA Civ 780. The court discharged the injunction and return order, and set aside the refusal of permission to use the documents under CPR rule 31.20.

• Queen's Bench Division: Curtis J, on 26 March 2002, had ordered the appellants to return the two opinions of counsel and restrained their use.