Reliance on Witness Statements ‘Inadvertently’ Disclosed Through ‘Incompetence’: Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm)

Last week, judgment was handed down in the case of Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm), which relates to an application, heard on the 3rd day of the trial, in February.

The defendants’ application sought permission, under CPR 31.20, to rely on the contents of 4 witness statements (dated 2011/2012), otherwise the subject of privilege, but ‘inadvertently’ disclosed by the claimants' solicitors in their lists of documents and then provided for inspection.

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Shortly before the trial commenced, the claimants asserted that disclosure had occurred as a result of an error made by a junior solicitor, which had not been picked up by their supervisor, and use of these statements by the opposing party was therefore objected to.

Having had the benefit of disclosure, the defendants wished to rely on their contents because they were taken 9-years closer to the incident in question (negligent misrepresentations as an inducement to purchase property) than any statement whose privileged status was not disputed. Thus, they were alleged to be a ‘far more … accurate reflection’ of the claimants’ evidence and were less likely to have been influenced by events occurring and knowledge gained in subsequent years.

Even though this allegation was prima facie relevant to the merits of the case, sitting High Court Judge, Sir Michael Burton GBE, decided the fate of the CPR 31.20 application as a matter of principle, without first reading what the statements said.

He did so in accordance with the principles laid down by Lord Justice Clarke, in the Court of Appeal decision of Al Fayed & Ors v Commissioner of Police of the Metropolis & Ors [2002) EWCA Civ 780, at paragraph 16:

‘i) A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not.

ii) Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents.

iii) 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.

iv) In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.

v) However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.

vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.

vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:

a) the solicitor appreciates that a mistake has been made before making some use of the documents; or

b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;

and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.

viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.

ix) In both the cases identified in vii) a) and b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.

x) Since the court is exercising an equitable jurisdiction, there are no rigid rules’.

The defendants’ case was that it had not been appreciated that a mistake had been made. Whereas, the claimants’ case was that it would have been ‘obvious to a reasonable solicitor’ that all 4 statements were mistakenly disclosed.

Whilst there was ‘obviously some apparent muddle’ in relation to the pagination of 3 statements, Sir Michael was ‘entirely satisfied that a reasonable solicitor was entitled to assume that there had been an intentional disclosure’. Every statement had been referred to in the list of documents (1 was explicitly mentioned in the paginated list) and specifically provided on the inspection.

There was also nothing to put the defendants’ solicitors ‘on notice’ of any mistake. In fact, the disclosure was ‘apparently deliberate’, with ‘no reason or them to assume incompetence’ – it was believable that the claimant might wish to share earlier witness statements ‘to complete the chronology and/or to emphasise consistency’, so why would the defendants have questioned the expressly listing in the absence of objection?

The only remaining question was whether there were any ‘other circumstances’ that would make it ‘unjust or inequitable’ to grant relief, with claimant counsel identifying the need for a ‘level playing field’ and for the ‘overriding principle’ to be enshrined.

It was remarked that the principles laid down in the Al-Fayed case were not indicative of whom the onus should lay with in resolution of this last question, ‘particularly where the disclosure was not of the kind occasionally occurring of a completely accidental inclusion in documents produced for inspection, but rather of a deliberate inclusion in the list as a result of some incompetence, whether of execution or supervision or both’.

Nevertheless, even if it were to be assumed that the onus falls on the defendant party(ies), there were still no grounds for refusing permission.

Accordingly, the judge found in favour of the defendants, allowing use of the ‘inadvertently’ disclosed documents.

Full text judgment can be accessed here.