A reminder that inadvertent disclosure of privileged material will not engage the cherry picking rule

The Administrative Court has held that a defendant did not lose privilege in unredacted passages of documents that had been provided for inspection, as it was obvious that the passages had been inadvertently disclosed, and that there was no question of a wider waiver of privilege as the material had not been deliberately deployed: Belhaj v Director of Public Prosecutions [2018] EWHC 514 (Admin).

Where a party to litigation deploys privileged material to support its case on the merits, the “cherry picking” rule (or the principle of collateral waiver) may result in a wider waiver than intended; the court may require disclosure of further privileged material to avoid unfairness or misunderstanding of the material disclosed.

The present decision is a reminder that the "cherry picking" rule has no part to play outside the context of a deliberate deployment of privileged material. Where privileged material is inadvertently provided for inspection, and the mistake is not obvious, this is likely to result in a loss of privilege in respect of that material. However, the loss of privilege will be limited to the material disclosed and will not extend to other privileged material which has not been provided.

Background

The underlying action was a judicial review against the DPP challenging her decision not to prosecute for alleged cooperation and participation in the claimants' unlawful rendition to Libya. Arguments relating to the alleged inadvertent disclosure of privileged documents were heard in closed proceedings, but the court gave an open judgment on the point.

The defendant submitted that a number of passages of privileged material had inadvertently been left unredacted in the original disclosure, which had been given to Special Advocates as part of the closed procedure, and sought to correct these "underclaims" of privilege. The Special Advocates asserted that the privilege had been lost as a result of the disclosure of the material and that, because of the "cherry picking" rule, the waiver of privilege went beyond the passages disclosed.

Decision

The Administrative Court (Irwin LJ and Green J) held that the defendant was entitled to assert privilege over all of the disputed items.

Inadvertent waiver

The court referred to the well-known case of Al Fayed v The Commissioner of Police for the Metropolis [2002] EWCA Civ 780 for a definitive summary of the principles governing inadvertent disclosure of privileged documents. In essence, a solicitor reviewing an opponent's disclosure is in general entitled to assume that any privilege that might have been claimed for such documents has been waived. If privileged documents have been made available for inspection by mistake, it will generally be too late to attempt to correct the mistake by obtaining injunctive relief. However, the court may intervene to prevent the use of documents made available for inspection where justice requires, for example where the documents have been made available as a result of fraud or obvious mistake.

In the context of the present case, the court was satisfied that the mistake was obvious. A reasonable lawyer receiving the material otherwise subject to legal professional privilege would appreciate (i) the highly specialised and sensitive nature of the material which would be the subject of any disclosure (including material otherwise covered by privilege) into a closed process; and (ii) the law relating to inadvertent disclosure. These matters were important to the test of obviousness. Any reasonable advocate receiving the information, in these circumstances, would know or believe that the provision of privileged material was inadvertent. As the court put it, "The suggestion that the State would deliberately disclose part but not all of its legal advice in such sensitive proceedings is intrinsically counterintuitive and improbable."

Cherry picking

The Special Advocate argued that, as the privileged passages that had been disclosed were not severable from the rest of the documents, the waiver applied to at least the entirety of the disclosed documents, but in principle to the entirety of legal advice material.

The court rejected this argument, explaining that cherry picking concerns a policy or strategy by the client to use legal advice in a selective manner to obtain a forensic advantage.

Here, it was not contended that the defendant had engaged in any tactical deployment of the legal advice. Accordingly, there was no question of a wider waiver resulting. As the court put it:

"'Cherry picking' is concerned with knowing, deliberate, deployment resulting in partial disclosure. Absent such an intention, the issue of cherry picking does not arise."