It’s a lottery! Use of inadvertently disclosed documents in litigation

In a recent decision, The New Lottery Co Ltd -v- Gambling Commission [2025] EWHC 1058 (TCC), the High Court partially granted a claimant’s application seeking permission, under CPR 31.20, to use privileged documents which the defendant had inadvertently disclosed. The decision is an interesting one as it considered the issue of disclosure of electronic documents, involving multiple reviewers and multi-tiered review.

Background

The Claimant had brought proceedings against the Gambling Commission concerning the Fourth National Lottery Competition.

During disclosure, the Gambling Commission inadvertently disclosed more than 4,000 privileged/partially privileged documents which had not been correctly redacted. The Gambling Commission’s disclosure was given in two tranches. Shortly after the first tranche of disclosure the Gambling Commission’s solicitors notified the Claimant that some inadvertently disclosed privileged content had been disclosed. It was stated that no waiver of privilege had been intended. Additional inadvertent disclosure of privileged material was identified subsequently. In total it was claimed that 4,321 documents had been inadvertently disclosed. The dispute narrowed to 128 documents in 20 different categories which the Claimant wished to rely on in the proceedings and which the Gambling Commission resisted.

The Claimant applied to the court for permission to use the documents the Gambling Commission claimed were privileged and inadvertently disclosed. 

To put matters in context, the evidence regarding the disclosure process before the court was that:

1. The disclosure process had taken over a four and a half year period;

2. More than 3 million documents had been collected and searches had been run across more than 80 custodians and document repositories. 

3. The Gambling Commission had employed a review team of 67 first and second level reviewers from two law firms;

4. 330,000 documents were manually reviewed at first and/or second level and 53,000 documents were disclosed in the two tranches. 

5. A number of in-house counsel were involved, producing privileged documents.

6. Redaction of privileged material across the document set was not carried out uniformly.  

The scale of and issues involved in the disclosure exercise was significant although not particularly unusual for large scale litigation.

Civil Procedure Rules – Permission of Court required

There are two relevant provisions that formed the basis of the application:

1. CPR 31.20 which provides that where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court; and

2. PD 57AD.19 (which generally applies in the Business and Property Courts) provides as follows:

"Restriction on use of a privileged document which has been inadvertently produced

19.1 Where a party inadvertently produces a privileged document, the party who has received the document may use it or its contents only with the permission of the court.

19.2 Where a party is told, or has reason to suspect, that a document has been produced to it inadvertently, that party shall not read the document and shall promptly notify the party who produced it to [them]. If that party confirms that the document was produced inadvertently, the receiving party shall, unless on application the court otherwise orders, either return it or destroy it, as directed by the producing party, without reading it."

Guiding principles

The issue of inadvertent disclosure of documents is not new and has been considered by the Courts many times. The case  of Al Fayed -v- Commissioner of Police of the Metropolis [2002] EWCA Civ 780 established the following principles for determining whether the inspecting solicitor may keep and make use of the allegedly privileged documents:

• A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and in general is entitled to assume that any privilege (which might otherwise have been claimed for such documents) has been waived.

• Therefore, if a party has given inspection, it is generally too late for it to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief.

• However, the court has the jurisdiction to grant injunctive relief where justice requires, including where the documents have been made available for inspection as a result of an “obvious mistake”.

• A mistake is likely to be obvious where:

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

  • it would be obvious to a reasonable solicitor in the same position that a mistake has been made.

The Al Fayed decision did not involve predominantly electronic documents and so the current decision is a welcome one, given the transition to a system of disclosure of primarily electronic documents.

Decision

The Judge granted permission to the Claimant to use some of the documents but not all and stated that “…there are no rigid rules….”. Key points to note are:

1. When considering disclosure, a reviewing party is entitled to assume that all disclosed documents were purposely disclosed. Where a privileged document has been disclosed in error, the court’s permission is required for an opponent to rely on the document.

2. The court was concerned with whether it should have been obvious to a reasonable solicitor carrying out a proper disclosure review that the documents had been inadvertently disclosed. What was “a reasonable solicitor” and “a proper disclosure review” was case specific.

3. The factors which could be taken into account when deciding whether the disclosure was obvious include: 

   1. The nature and content of the document;

   2. The extent and complexity of the disclosure exercise which could increase the likelihood of errors;

   3. Where there had been disclosure of significant amounts of privileged material, this may indicate that the system had broken down rather than deliberate disclosure.

4. In this type of disclosure review, the objective question remained, at any level, whether it would have been obvious to a reasonable solicitor, who should be assumed to have a reasonable level of knowledge of the case, that a document had been disclosed inadvertently.

5. On the specific issue of tiered reviews of electronic disclosure, where there is something in a disclosed document which ought to alert the reasonable reviewer to the possibility of mistake, they should inquire further and/or refer the document to a higher level reviewer.

6. Where the privilege arises from in-house counsel, particularly where there is a large in-house team, it may be more difficult for a review team to spot issues of privilege and to redact accordingly. 

Conclusions

Obviously, when undertaking an extensive disclosure exercise with muti-tiered review involving numerous reviewers, it is important to check all documents for privilege and that any redactions have been applied in a consistent fashion.

Where a multi-tiered electronic document review is taking place, a system of escalation is required for privilege (and other) queries to be dealt with.  

Where the privilege arises from an in-house counsel team, it may be advisable to provide an opponent with a list of all the in-house lawyers involved to highlight sources of privileged material.

Wherever possible in-house teams should mark documents that are privileged “legally privileged” to reduce areas of confusion.