Mohammed v Ministry of Defence

Legal professional privilege may be lost through distinct mechanisms, including consent, subject-matter waiver, loss of confidentiality and equitable control over inadvertently disclosed material. Reference to privileged material in open court does not automatically destroy confidentiality. However, documents read or referred to publicly are presumptively accessible, subject to an application under CPR r.31.22(2) restricting further use. Under CPR r.31.20, inadvertently inspected privileged material may be used only with permission. The key questions are whether disclosure resulted from an obvious mistake and whether restraining use would be just and equitable. Permission was refused for passages recording Attorney General advice, but granted for other challenged passages.

The claimant sought permission to use unredacted passages in documents originally disclosed by the defendant in earlier judicial-review proceedings concerning detainee transfers in Afghanistan. The earlier proceedings were R (Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). The documents were later passed to the claimant’s solicitors for use in judicial-review proceedings and then in this damages action.

The defendant subsequently asserted legal professional privilege over passages which had inadvertently remained unredacted. The claimant argued that privilege had been waived and, for two documents referred to in open court, that confidentiality had been lost. The central issues were whether disclosure resulted from an obvious mistake, whether permission was required under CPR r.31.20, and whether an order should be made under CPR r.31.22(2).

The court held that disputed relevance did not require determination before the confidentiality issue. The claimant already possessed and had inspected the documents. Relevance concerned admissibility, not whether use should be restrained.

1. Loss of confidentiality. Information does not necessarily become public merely because a document, or information within it, is mentioned in open court. Confidentiality may be lost through sufficient publicity, assessed as a question of fact and degree. The open-justice principle also gives the public a general right of access to documents read or referred to in court. The default position is therefore public access, subject to the court’s power under CPR r.31.22(2) to restrict or prohibit further use.

2. Inadvertent disclosure. Under CPR r.31.20, a party who inadvertently permits inspection of a privileged document must obtain permission before the document or its contents are used. Applying Al Fayed v Commissioner of Police of the Metropolis (No 1) [2002] EWCA Civ 780, it is generally too late to reclaim privilege unless inspection resulted from an obvious mistake. Even then, relief depends on whether preventing use would be just and equitable. The jurisdiction is equitable and involves no rigid rules.

3. The same starting point applied to documents referred to in open court, although an order under CPR r.31.22(2) was required. The court considered the reasonable solicitor’s knowledge, the scale and time pressure of the earlier disclosure exercise, the rarity of Government disclosure of privileged material, the convention concerning Law Officers’ advice, and the defendant’s reliance on the absence of a legal basis for detention beyond 96 hours.

4. It was not obvious that passages in H1, H3 and J5 had been disclosed by mistake, and use of the challenged passages in H1, H3, J5 and J7 was permitted. By contrast, it was obvious that the passages in J6 and J3 recording Attorney General advice had been inadvertently disclosed. Permission to use those passages was refused. For J6, which had been referred to at a public hearing, the court also prohibited use of the unredacted document under CPR r.31.22(2).