Almost everyone will have suffered the agonising experience of sending a sensitive email to the wrong recipient. A Court of Appeal test case was triggered by one such incident in which a hapless junior solicitor emailed a document that compromised his client’s case to the opposing side in property litigation.
A developer had sold two of its single purpose subsidiaries to a property company. The developer warranted that the subsidiaries possessed all necessary rights and consents to construct two wind farms. The company launched proceedings, alleging breach of those warranties in that necessary rights of way were not in place in order to enable delivery of turbines and other components to the sites.
In the course of pre-trial disclosure, a junior solicitor who worked for the law firm representing the developer emailed a document to the company’s solicitors. The document was a communication between a senior solicitor and the developer’s chief executive. Although not fatal to the developer’s case, it certainly provided useful ammunition to the company in the pursuit of its claim.
The company refused a request to permanently delete the email and to give an undertaking that it would make no use of it in the proceedings on the basis that it was a privileged communication between the developer and its lawyers. The developer’s application for an injunction to the same effect was subsequently rejected by a judge.
In upholding the developer’s appeal and granting the order, the Court noted the rule of practice that, where a privileged document is inadvertently disclosed between one party to litigation and another, the latter will not be permitted to make use of it or its contents without the permission of a judge. The Court found that the document had been emailed in error and that, although the mistake had not been obvious to the company immediately, it had later become so.
The Court noted that, in the electronic age, disclosure of documents in litigation can be a massive and expensive operation and that mistakes inevitably occur. In such circumstances, the duty of honesty falls upon the party inspecting the documents as much as upon the party disclosing them. The Court expressed the hope that, in the case of obvious mistakes, lawyers on both sides would cooperate to put matters right as soon as possible.