Not All Mistakes Are Mistakes

It is fairly widely known that in a legal dispute some documents can be 'privileged', which means that they cannot be used in evidence. Normally, communications between a solicitor and their client are privileged.

However, the right of privilege is not unlimited, as a recent case showed. It involved an investigation by the Serious Fraud Office (SFO), which was taking proceedings in connection with the failure of the Icelandic Kaupthing Bank.

The criminal proceedings collapsed and this led to a counterclaim against the SFO, by the people who had been under investigation, for compensation for commercial losses and damage to their reputations.

The documentation involved was voluminous and, during the disclosure of documents as part of the litigation, five documents (one of which was included in a single batch of more than 16,000 documents sent to the claimants) were disclosed which it was claimed were legally privileged and had been disclosed by mistake.

Where such a mistake is 'obvious', the court can rule that the document is privileged.

The argument over the documents ended up in the Court of Appeal, which found that just because a document would be privileged, its disclosure does not necessarily constitute an obvious mistake.

On the facts relating to the individual documents that had been supplied inadvertently, the Court ruled that four of these could be used by the claimants.

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