Belhaj & Ors v Director of Public Prosecutions & Ors

Inadvertent disclosure of privileged material does not ordinarily amount to deliberate deployment or “cherry-picking”. Where the disclosure was accidental, the court must assess whether the mistake was obvious to a reasonable solicitor in the particular context. The equitable jurisdiction to restrain use of inadvertently disclosed material remains flexible and depends on all the circumstances. In closed and highly sensitive proceedings, the nature of the material and the surrounding process may make it apparent that disclosure of privileged material was accidental. A party may then reassert legal professional privilege, provided there has been no tactical or manipulative deployment and fairness is adequately protected.

The claim challenged the decision of the Director of Public Prosecutions not to prosecute alleged involvement in the rendition of the claimants to Libya. This judgment concerned a further issue arising during disclosure: whether the Secretary of State could reassert legal professional privilege over passages inadvertently left unredacted in three documents disclosed in closed proceedings.

The claimants and special advocates opposed the application, arguing that privilege had already been waived and that the disclosure involved impermissible selective treatment of the documents. The court considered the principles governing inadvertent disclosure, obvious mistake, fairness and “cherry-picking”.

1. Application granted. The Secretary of State was entitled to reassert legal professional privilege over the disputed passages. No use could be made of those matters in the proceedings or otherwise.
2. Under CPR 31.20, a party who inadvertently permits inspection of privileged material may seek the court’s permission to prevent its use. The governing principles were summarised by the Court of Appeal in Mohammed Al Fayed et ors v The Commissioner of Police for the Metropolis et ors [2002] EWCA Civ 780. The court emphasised the principle that relief may be granted where the mistake would have been obvious to a reasonable solicitor, subject to the equitable assessment of all the circumstances.
3. The relevant context included the highly specialised and sensitive nature of the closed process, the assertion of privilege over the material, the fact that privileged material had nevertheless been disclosed, and the subsequent attempt to correct the error. In that context, a reasonable lawyer would appreciate that the disclosure was inadvertent.
4. The court accepted the construction of Great Atlantic Insurance Co. v Home Insurance Co. [1981] 1 WLR 529 adopted by Leggatt J in Serdar Mohammed v MOD [2013] EWHC 447 (QB). “Cherry-picking” concerns knowing and deliberate deployment of part of privileged material to obtain a forensic advantage. It did not arise where the partial disclosure was accidental and there was no tactical deployment.
5. The absence of bad faith and the importance of the duty of candour meant that reassertion of privilege was not unfair. The disputed disclosures were inadvertent, were not tactical partial disclosures, and could properly be corrected.

The judgment records that the context and background had been addressed in earlier open judgments, including [2017] EWHC 3056 (Admin). This judgment determined the separate issue concerning reassertion of privilege following inadvertent disclosure.