Belhaj & Anor v Director of Public Prosecutions & Ors

In complex litigation involving closed material, an inadvertent disclosure of privileged passages may be corrected where the passages were disclosed in error and the error was sufficiently obvious that an experienced and reasonable legal representative should have identified it. The test is objective. Evidence of what the lawyers actually thought and did may assist, but cannot determine the issue. The complexity of national security, international relations and closed proceedings may affect the realistic time needed to identify an error. A court should focus on fairness and should not infer improper cherry-picking without a coherent evidential basis.

The Divisional Court considered an application by the Secretary of State to reassert legal professional privilege over 20 passages inadvertently left unredacted in three documents disclosed only into closed proceedings. The documents comprised legal advice to the Director of Public Prosecutions, a review note and a victim right of review decision.

The claimants and Special Advocates opposed the correction, principally arguing that the Secretary of State was impermissibly cherry-picking material after the documents had been disclosed and considered. The central issues were whether the passages were privileged, whether their disclosure was accidental, whether the errors were sufficiently obvious, and whether fairness required the privilege to be restored.

1. Application granted. The court permitted renewed assertion of legal professional privilege over the 20 identified passages.
2. The passages were agreed to be privileged and had been opened up in error. There was no coherent basis for concluding that they had been selected to favour the Secretary of State or defeat the judicial review claim. The court therefore found no bad faith or impermissible cherry-picking.
3. The question whether the errors were sufficiently obvious was objective. Evidence concerning what lawyers in the particular case actually thought and did could assist, but was not determinative. The court applied the approach identified in Serdar Mohammed v Ministry of Defence [2013] EWHC 4478 (QB).
4. The unusual character of the litigation was relevant to that objective assessment. National security, international relations, difficult jurisdictional issues and the management of closed proceedings could realistically make an error take longer to identify. The delay before the issue was raised therefore did not prevent the errors from being obvious once properly considered.
5. The court found no discernible pattern in the contested passages and no basis for inferring special unfairness from restoring the protection of privilege. Fairness, the fundamental principle governing the issue, supported permitting the renewed assertion.