In a recent judgment, the court has refused to grant an injunction to prevent a party using privileged material which had inadvertently been disclosed by the other side’s solicitors. The court found that the disclosure of such material was not a mistake which was obvious to the other party, and the material itself led to concerns about the independence of an expert.
The underlying claim arose from a tree root subsidence dispute. The claimant, Mr Pickett, alleged that a tree in the garden of the defendant, Mr Balkind, had caused damage to his property and he therefore sought damages for nuisance and negligence.
The claimant made an application to adjourn the trial on the grounds that the claimant’s expert was scheduled to have surgery and was therefore unable to attend. In support of the application, the claimant’s solicitors filed a witness statement, appended to which was an unredacted copy of a letter from the expert (the letter). The letter not only explained the reasons why the expert was unable to attend the trial, but also referred to comments made by the claimant’s counsel on the experts’ joint statement.
Upon receipt of the application and reviewing the letter, the defendant’s solicitors expressed their concerns that the Letter demonstrated that the claimant had breached the Technology and Construction Court Guide (the TCCG), namely paragraph 13.6.3 that “legal advisors must not be involved in either negotiating or drafting the experts’ joint statement”.
In response, the claimant’s solicitors denied that there had been any breach of the TCCG, instead claiming that the Letter was privileged material which had been “disclosed inadvertently by obvious mistake” and that any attempt to rely on its contents “will be strenuously resisted” (paragraph 21 of the judgment). The claimant’s solicitors subsequently refiled the adjournment application, but omitted both reference to, and a copy of, the letter. Upon receiving the revised application, the defendant’s solicitors stated that the defendant did not accept the claimant’s position.
The claimant subsequently applied for an injunction to restrain the defendant’s use of the original witness statement and the letter. In the application, the claimant’s solicitors claimed that the “letter was privileged” and they “did not intend to waive privilege”, and to file the unredacted version was “an inadvertent and obvious error” (paragraph 25). The claimant’s solicitors argued that the letter contained “comments in respect of an aide memoire” that had been sent to the expert “in connection with the preparation of the expert’s joint statement” (paragraph 25).
The defendant’s solicitors filed a witness statement in opposition to the application notice which claimed that the letter had “attracted legal professional privilege until that privilege was waived on behalf of the claimant” and, as the letter had been specifically referred to in a witness statement, the defendant “did not consider that the claimant had inadvertently sent…any privileged material” (paragraph 26). The defendant also issued a cross-application for production of the "aide memoire", permission to cross-examine the claimant’s expert regarding the preparation of the experts’ joint statement and permission to use the letter in evidence.
In his judgment, His Honour Judge Matthews:
- Dismissed the claimant’s application for an injunction to restrain the defendant’s use of the letter
- Dismissed the defendant’s application for production of the aide memoire
- Granted permission for the defendant to cross-examine the claimant’s expert at trial as to the preparation of the experts’ joint statement
- Granted permission for the defendant to deploy the letter in evidence
In dismissing the injunction application, HHJ Matthews found that the claimant had waived privilege and therefore there was no grounds to grant an injunction. HHJ Matthews explained “the claimant has not (as he could have done) merely 'referred' to the letter, but has 'deployed' its contents” (paragraph 75). HHJ Matthews also referred to the judgment of Clarke LJ in the Court of Appeal case, Al Fayed v Commissioner of Police of the Metropolis  EWCA Civ 780, who said that "a solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived." As such, HHJ Matthews found that the claimant’s solicitors’ mistake in sending the Letter in an unredacted form was not “obvious” to the other side, and it was therefore credible for the defendant’s solicitors to rely on the letter to pursue the “legitimate and proper” concern that the claimant had breached the TCCG (paragraph 35).
HHJ Matthews refused the defendant’s application for production of the "aide memoire" on the basis that, having not seen the document, he could not be “satisfied that it is part of the expert’s instructions” (paragraph 92) and therefore he did not have the power to order its disclosure under CPR 35.10.
Given the defendant’s concerns around the independence of the claimant’s expert and the breach of the TCCH, HHJ Matthews found that there was a “proper basis” for the cross-examination of the claimant’s expert at trial (paragraph 93). However, HHJ Matthews emphasised that granting permission for the claimant’s expert to be cross-examined did not lead to a presumption that permission was given for the defendant’s expert to be cross-examined as there was “no material” before him to suggest that the independence of the defendant’s expert had been compromised (paragraph 94).
As the claimant’s application for an injunction to prevent the defendant’s use of the Letter failed, HHJ Matthews found that there was “no reason not to give permission” for the Letter to be used in evidence (paragraph 80).
The judgment of HHJ Matthews serves as a useful reminder to lawyers and litigators to take care when sending documents to the other side. It is clear from Pickett v Balkind, that, where a privileged document is disclosed in error, but that error is not "obvious", the court may be less inclined to restrict its use. Parties must therefore ensure that they take care when sharing documents and consider that privilege could be waived.
The court’s position on restricting the use of privileged material is strengthened significantly where the disclosure reveals that a party may have breached court rules. In Pickett v Balkind, this wrongdoing also serves as a reminder of expert independence in legal proceedings. Experts owe their duties to the court, not to the legal team instructing them, with PD35 requiring experts to provide independent work to the court, that is “uninfluenced by the pressures of litigation”. Lawyers should therefore not interfere in the preparation of experts’ joint statements.