Tchenguiz & Ors v Director of the Serious Fraud Office

Under CPR 31.20, a party who has inspected a privileged document disclosed inadvertently may use it only with the court’s permission. The court exercises an equitable jurisdiction guided by the Al-Fayed principles, but no rigid rule applies. Permission may be refused where the disclosure resulted from an obvious mistake, assessed by reference to what a reasonable solicitor would have appreciated in the circumstances. In a public interest immunity case, a public interest certificate is a potent consideration. The absence of an obvious mistake does not automatically require permission to use the document. The court may give effect to the certificate without undertaking a separate review of whether immunity should be overridden where that issue has not been argued.

The claimants applied for permission under CPR 31.20 to use four documents disclosed inadvertently by the Director of the Serious Fraud Office. Three documents were said to be protected by legal professional privilege, including legal advice privilege and litigation privilege. The fourth was subject to a public interest immunity certificate.

The central questions were whether the privileged documents had been disclosed by obvious mistake, whether one document satisfied the dominant-purpose test for litigation privilege, and how the Al-Fayed principles applied to the document protected by public interest immunity.

1. Disposition. The claimants’ application for permission to use the documents was refused. The SFO’s application for relief concerning the document subject to public interest immunity was granted.
2. Privileged documents. CPR 31.20 applied. The relevant approach was that stated by Clarke LJ in Al-Fayed v Metropolitan Police Commissioner [2002] EWCA Civ 780. The court’s equitable jurisdiction contained no rigid rules. The question was whether the disclosure resulted from an obvious mistake, including whether a reasonable solicitor in the recipient’s position would have appreciated the mistake and whether other circumstances made relief unjust or inequitable.
3. The scale and complexity of the SFO’s disclosure exercise did not make an obvious mistake impossible. The court found that the intelligence briefing note contained specific features indicating that it had been disclosed by mistake. The same conclusion applied to the Wayil Eisa Report and the June 2012 emails. The Wayil Eisa Report had been produced for the dominant purpose of the judicial review litigation and therefore attracted litigation privilege.
4. Public interest immunity. The court did not decide whether paragraph 17 of Al-Fayed was binding or whether its statement concerning public interest immunity was correct in law. It proceeded on the assumption that the statement was binding, or represented the law.
5. Even on that basis, the existence of a public interest immunity certificate was a potent and relevant consideration. The absence of an obvious mistake would not oblige the court to permit use of the document. As the parties had not invited the court to review whether immunity should be overridden, the certificate was taken at face value and given effect.