The New Lottery Company Limited & Anor v The Gambling Commission

Where privileged documents have been inadvertently disclosed, permission to use them is governed by an equitable, fact-sensitive assessment. The central question is whether it was, or should have been, obvious to a reasonable solicitor carrying out a proper disclosure review that the document was privileged and had been disclosed by mistake.

The assessment is objective, although the actual conclusion reached after detailed consideration is an important pointer. It is not confined to the first level of a multi-tier electronic review. The court may consider the document’s character, the disclosure exercise, the volume and complexity of disclosure, the reviewer’s knowledge of the issues, inconsistent versions and redactions, and whether the disclosure appeared deliberate. These matters are indicators rather than rigid rules.

The claimants challenged aspects of the Fourth National Lottery Competition and subsequent modifications to the lottery agreements. During procurement proceedings, the Gambling Commission disclosed more than 4,000 documents containing wholly or partially privileged material. The dispute narrowed to 128 documents in 20 categories which the claimants wished to use, principally in preparing amended pleadings.

The claimants applied under CPR Part 31.20 for permission to use the documents. The court had to determine whether the disclosure of each sampled category was an obvious mistake, applying the principles in Al Fayed v Commissioner of Police of the Metropolis. The parties agreed that the decision on each sample document would apply to its category.

1. Applicable principles. The application was governed by Civil Procedure Rules 1998, Part 31.20. The court’s jurisdiction is equitable and there are no rigid rules. Permission is more likely where it was not obvious that disclosure resulted from mistake, and more likely to be refused where the mistake would have been obvious to a reasonable solicitor. A solicitor’s detailed and honestly held conclusion is an important, but not conclusive, pointer: Al Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780 at [16].
2. The objective test is whether a reasonable solicitor conducting a proper disclosure review should have appreciated that the document was privileged and had been disclosed inadvertently. It is not confined to the first review. In a tiered electronic review, the court may consider the review at each level, giving particular weight to a detailed core-team review. The reasonable solicitor may need to inquire further or escalate a document where its nature raises the possibility of error. The inquiry remains case- and document-specific.
3. The relevant indicators include the nature and content of the document, the identity and role of authors or commentators, the sophistication and manner of the disclosing party’s review, the volume and complexity of disclosure, the issues for disclosure, multiple versions and inconsistent redactions, and whether there was any apparent reason to waive privilege. Volume may point in either direction. These are evidential factors, not principles of law.
4. The court accepted that legal advice privilege extends beyond advice on legal rights and liabilities to advice as to what should prudently and sensibly be done in the relevant legal context, and protects secondary evidence recording or revealing privileged communications, applying R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35. Confidential sharing with a third party may occur without loss of privilege, including for a limited purpose.
5. The Practice Direction 57AD, paragraph 19, did not apply because these were procurement proceedings. In any event, it was unlikely to have been intended to make a significant change to the Al Fayed approach.
6. Permission was granted for some documents, including high-level commercial material and documents that did not reveal legal advice. Permission was refused for documents plainly marked as privileged, recording or reflecting legal advice, containing obvious inconsistent redactions, or whose contents and context made mistaken disclosure obvious. Permission was also refused for the Client Reviewed Document and other documents recording detailed legal advice. The application was therefore granted in part.