DEFENDANT GIVEN PERMISSION TO RELY ON WITNESS STATEMENTS THAT THE CLAIMANT DISCLOSED BY MISTAKE: HIGH COURT RULING

In  Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642 (Comm) Sir Michael Burton (sitting as a High Court Judge) granted a defendants’ application to rely on witness statements mistakenly disclosed by the claimant.

 

“The disclosure was apparently deliberate, and there was no reason or them to assume incompetence.”

 

THE CASE

During the course of a trial the judge ruled on an application by the defendants to rely on four witness statements.  These would otherwise be the subject of privilege but were disclosed by the claimants’ in their list of documents.

THE JUDGMENT ON DISCLOSURE

The judge held that it was not obvious that the statements had been disclosed inadvertently. There was no reason to prevent the defendant

The disclosure application
    1. It was common ground between counsel that the modern approach is for the party who wishes to use the documents to make an application for permission, pursuant to CPR 31.20, and that the most relevant judicial decision is that of the Court of Appeal in Mohammed Al Fayed and Others v The Commissioner of Police of the Metropolis [2002) EWCA Civ 780, in which the judgment of the Court is given by Clarke LJ.
    1. The principles are set out in paragraph 16 of the Judgment:

16. In our judgment the following principles can be derived from those cases:

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.”

    1. The position here is that it is not suggested that the Defendants’ solicitors appreciated that a mistake had been made. The Claimants’ case is that it would be obvious to a reasonable solicitor that a mistake had been made.
    1. The application relates to four statements made by the Claimants Joyce, White, Gibb and Williams in 2011 or 2012, disclosed by the Claimants’ solicitors in the respective lists of documents, and then provided for inspection. Only just prior to the start of the trial was it asserted that this occurred as a result of an error by a junior solicitor, not picked up by anyone supervising, and objection was raised to the Defendants relying on the documents. Now that they have been disclosed, the Defendants wish to rely on the contents of these statements as setting out what they allege to be far more likely to be an accurate reflection of the Claimants’ evidence, being nine years nearer to the time in question of 2006–2009, and that such statements are also more likely to give an accurate account, because they will not be influenced, as perhaps they have been, by events occurring and knowledge gained in the subsequent years. They are prima facie therefore relevant to the merits of the case before me. I was not asked to read the statements before resolving the issue, but I am to decide the application as a matter of principle.
    1. The facts so far as disclosure and inspection are concerned are as follows:
i) Joyce. The list of documents completed by the Claimants’ solicitors included under paragraph 2 that “the extent of the search that (I/we) made to locate documents that [the Joyces] are required to disclose was as follows….16) Witness Statements“. Then in Schedule A , under the heading “The claimant….has control of the documents numbered and listed here. The claimant… does not object to you inspecting them….Witness statement of Claimants dated 22/2/2011“.  Attached was a document headed “File of Stephen Joyce Disclosure of Documents“, and as the second category there was “Witness statement pages 7–15“.  Pages 7–15 of the bundle of documents supplied on inspection indeed constituted a witness statement by Mr Joyce dated 22/02/2011.
ii) White. The list of documents had a similar statement under paragraph 2, namely “16) Witness Statements“. There was then listed in Schedule A “Witness Statement why they bought the property“. As for the File of Stephen White Disclosure of Documents, no witness statement was listed, but under the heading “Correspondence” there were listed “email from Stephen White attaching response to questionnaire 25/10/2010 (3 pages)” and “email from Stephen White with answers to questions on 25/10/2020 (sic).” In the bundle of documents there were no such emails, but there was the White witness statement. This had the pagination 96–99. In the listed items, Assignment of contract of sale was said to be paginated 92–99, but it was only four pages, and was in fact paginated 92–95 and the White statement, when produced, was paginated as 96–99.
iii) Williams. This Claimant’s list of documents again included under paragraph 2 “16) Witness Statements“. And in Schedule A there was listed “Witness statement of Claimants undated“. In the File of Williams Disclosure of Documents, there was no listing of such witness statement. When produced, the witness statement had two forms of pagination, 26–29 in manuscript and 92–94 in printed form, neither of which corresponded to the numbering set out in the File.
iv) Gibb. Once again, paragraph 2 of the list of documents for standard disclosure contains the words “16) Witness Statements” and included under schedule A “Witness statement of Claimants undated“. The file of Gibb Disclosure of Documents makes no mention of a witness statement in listing out the documents paginated,  but when disclosed the witness  statement of two pages had pagination 120–121, which again did not coincide with anything listed, there already being pages 120–121.
v) When the Inspection lists were uploaded onto the Teams site for the Defendants to download, the witness statements of White, Williams and Gibb were specifically identified as separate documents.
    1. Turning to the principles set out by Clarke LJ, given that there is no case made that the Defendants’ solicitors appreciated that there had been a mistake, I must decide whether it was, on the basis of the above facts, obvious to a reasonable solicitor in the position of the Defendants’  solicitors that a mistake had  been made in disclosing the four witness statements. Although there was obviously some apparent muddle in relation to the pagination with regard to White, Williams and Gibbs, I am entirely satisfied that a reasonable solicitor was entitled to assume that there had been an intentional disclosure of the relevant witness statements, all referred to in terms in paragraph 2 and schedule A l to the list of documents, in the case of Joyce specifically referred to in the paginated list, and in all four cases specifically provided on the inspection. There seems to me to be nothing which would put the Defendants’ solicitors on notice of any mistake, particularly in a case in which it could well have been that claimants might wish to disclose earlier witness statements to complete the chronology and/or to emphasise consistency, and the existence of such witness statements was expressly listed without objection to disclosure. The disclosure was apparently deliberate, and there was no reason or them to assume incompetence.
    1. I turn them to consider whether there are any other circumstances, which would make it unjust or inequitable to grant relief. Mr Nathan had difficulty in identifying any particular matter, because, as discussed in the course of argument, any case that there should not be disclosure, in the circumstance when there has been production, can cut both ways, dependent upon whether the contents favour one side or the other.  Mr Nathan referred simply to the need for a level playing field and to the Overriding Principles enshrined by the CPR.
  1. Clarke LJ does not indicate on whom the onus should be in resolution to 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. But even on the assumption that the onus lies upon the Defendants, I am satisfied that there are no grounds for my refusing them permission to use the documents. I therefore grant the Defendants permission.