Rawlinson And Hunter Trustees S.A. & Ors v Director of the Serious Fraud Office

Where a privileged document is inadvertently disclosed, permission to use it under rule 31.20 of the Civil Procedure Rules 1998 generally turns on whether the mistake was obvious to the recipient or would have been obvious to a reasonable solicitor in the recipient’s position. The document’s privileged character does not itself establish an obvious mistake. The court must consider the disclosure’s full context.

Litigation privilege for a document serving multiple purposes requires evidence that litigation was its dominant purpose.

Different principles govern public interest immunity. Once immunity is properly raised, the court must balance the competing aspects of the public interest. Use may be prohibited even though disclosure was not an obvious mistake. An earlier decision based on an unargued assumption does not bind a later court on that assumed proposition.

The Serious Fraud Office disclosed documents during substantial damages proceedings arising from searches connected with its investigation into the collapse of Kaupthing Bank. The appellants sought permission under rule 31.20 of the Civil Procedure Rules 1998 to use four groups of documents which the Serious Fraud Office said had been disclosed inadvertently.

Eder J, in [2014] EWHC 1102 (Comm), held that three groups were protected by legal professional privilege and had obviously been disclosed by mistake. He also refused permission to use a fourth document after the Director issued an unchallenged public interest immunity certificate.

The appeal concerned whether the alleged privilege and obvious mistake had been established, and whether the obvious-mistake requirement applied to a document subject to public interest immunity.

1. The appeal was allowed in relation to the four documents for which legal professional privilege was asserted, but dismissed in relation to the document covered by public interest immunity. The court was unanimous.

2. Under rule 31.20 of the Civil Procedure Rules 1998, a recipient may ordinarily assume that documents produced for inspection were produced voluntarily. Where a privileged document was disclosed by mistake, the court may prevent its use if the solicitor actually appreciated the mistake, or if the mistake would have been obvious to a reasonable solicitor in the same position. The jurisdiction remains equitable and depends on all the circumstances: Al-Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780 followed as regards legal professional privilege.

3. The judge had wrongly treated the obviousness of privilege as effectively establishing an obvious mistake. The scale and complexity of disclosure, general reservations of privilege, the documents’ contents, prior correspondence, redactions and the surrounding production all had to be considered. In context, disclosure of the briefing note and email string was not an obvious mistake.

4. The former employee’s statement served both an operational-review purpose and a litigation-related purpose. A document created for multiple purposes attracts litigation privilege only where evidence enables the court to find that litigation was the dominant purpose. The Serious Fraud Office had not provided sufficient evidence. The statement was therefore not shown to be privileged; alternatively, any mistake in disclosing it was not obvious.

5. Public interest immunity is fundamentally different from legal professional privilege. It protects the public interest rather than a waivable private right. Once properly raised, the court must balance the public interest in confidentiality against the public interest in the administration of justice. That exercise applies even where inadvertent disclosure was not obviously mistaken.

6. The contrary statement about public interest immunity in paragraph 17 of Al-Fayed formed part of that decision’s ratio, but rested on an assumption which had neither been argued nor decided. Applying R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955, the court was not bound by it. The unchallenged immunity certificate carried great weight, and permission to use the protected document was properly refused.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 1129, the court unanimously allowed the appeal concerning the four documents said to be protected by legal professional privilege and dismissed it concerning the document covered by public interest immunity.

2. High Court, Commercial Court: Eder J, in [2014] EWHC 1102 (Comm), refused permission under rule 31.20 of the Civil Procedure Rules 1998 to use the documents.