Forsters LLP v Zia Uddin

Where confidential or privileged documents are disclosed by obvious mistake, the court will ordinarily intervene in equity to restore the position that would have existed without the mistake. Relief may require delivery up, destruction of copies and restraint on using the documents or their contents. Privileged documents are a class apart: the receiving party cannot justify their use by arguing that they are relevant or may assist in establishing the truth, because the law has already struck the balance in favour of privilege. Mere unauthorised retention of confidential information may itself constitute a breach of confidence. Delay may be relevant to costs, but will not necessarily defeat relief where the merits remain strong and the delay has caused no significant prejudice.

Forsters LLP acted for neighbours involved in nuisance litigation. Following a data subject access request, an incorrect file was supplied to Zia Uddin, containing approximately 3,300 documents, including privileged and confidential material from the clients’ litigation file and documents concerning unrelated third parties.

Uddin recognised the error but refused to delete or return the documents. He sought to use some of them in his own claim against employees of Forsters and in the underlying nuisance proceedings. Forsters applied for an interim injunction requiring delivery up or destruction and restraining further use. The central issues were whether the disclosure was an obvious mistake, whether equitable relief was available despite delay, and whether relevance, public interest or the pursuit of truth justified retention or use.

1. Relief granted. The application was a clear case of obvious mistake. Uddin knew, or plainly ought to have known, that the disclosure was erroneous. The court ordered delivery up of all 3,300 documents, deletion of copies and restraint on using the documents or information derived from them in either claim.
2. The equitable jurisdiction protects confidential information where it comes to a person in circumstances giving notice that it is confidential. It includes power to compel return or destruction and to restrain examination, copying, distribution, communication or use. The court applied the principles stated in Imerman v Tchenguiz [2010] EWCA Civ 908.
3. In an inadvertent disclosure case, the touchstone is whether the receiving party is taking advantage of an obvious mistake. The relevant considerations include whether the mistake was known, or would have been obvious to a reasonable recipient, and whether other circumstances would make relief unjust or inequitable. There are no rigid rules. The approach in Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780 was applied.
4. Privilege prevents reliance on the supposed relevance or truthfulness of the documents. The balance between privilege and truth has already been struck in favour of privilege. Accordingly, the possibility that the documents might assist Uddin’s claims was no answer to delivery up or restraint. The court followed the reasoning in Goddard v Nationwide Building Society [1987] QB 670, Istil Group v Zahoor [2003] EWHC 165 (Ch) and Lachaux v Independent Print [2017] EWCA Civ 1327.
5. Mere unauthorised retention of confidential information is itself sufficient to found equitable relief. In any event, this was not merely a possession case because Uddin was attempting to deploy the documents. Delay did not defeat the claim, although it might affect costs. The court accepted evidence by categories and sampling as proportionate; a document-by-document analysis was unnecessary.