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Articles | Mon 29th Mar, 2021
As you would expect, from midnight last night the team at 1CL have been a blur of sporting activity, dusting down the various 1CL bats, clubs and racquets and venturing forth to participate in the Prime Minister’s ‘Summer of Sport’. But mens sana in corpore sano, as dear old Juvenal used to say, and we’ve also found time to consider accidental disclosure of witness statements and waiver of privilege; and the significance of enforcement of judgments in determining jurisdiction. We were also interested to read of the judge who permitted a Defendant in a serious injury claim to call four experts on the meaning of the word ‘stolen’ in Directive 2009/103/EC; this being necessary as an aid to the interpretation of retained Eurolaw, in circumstances in which the Road Traffic Act 1988 does not fully comply with the requirements of the Directive (cf Covea Insurance Plc v Greenaway  3 WLUK 379). And in further caselaw relating to CPR Part 36, in Kings Security Systems Limited v King  3 WLUK 331 the Claimant who continued to pursue a Defendant rather than accepting an offer made by a joint tortfeasor was held to have behaved reasonably, and recovered its costs against the Defendant. On Wednesday, of course, the ultimate sporting challenge will occur; the 1CL LLST Quiz, hosted by Richard Cherry and Ian Stebbings, with puns by Paul McClorry of Hudgells, and, we predict, won by the 1CL team.
Accidental Disclosure and Waiver of Privilege
In the recent case of Barclay-Watt v Alpha Panareti Public Ltd  3 WLUK 310 (QBD (Comm)), distinguished retired High Court Judge Sir Michael Burton, sitting in a part-time capacity, was faced with an application by the Defendants on the third day of trial to rely upon the contents of four witness statements, the contents of which would otherwise be the subject of privilege.
The background to the application was that the four statements made by the Claimants between 2011 and 2012 were disclosed by the Claimants’ solicitors in their disclosure lists and were subsequently provided for inspection. It appears that the inclusion was the result of a mistake by a junior solicitor at the Claimants’ solicitors’ firm. To compound matters, however, the mistake went unnoticed by those supervising the solicitor and it was only just prior to the start of trial that objection was raised to the Defendants. For their part, the Defendants argued they should be allowed to rely upon the contents of the statements since they were likely to furnish far more accurate evidence, being nine years closer to the time in question (2006-2009), than the Claimants’ later statements, and were also likely to be less influenced by the subsequent course of events. The learned judge was asked to decide the Defendants’ application as a matter of principle without first reading the statements in question, and this is the basis upon which he proceeded.
In reaching his conclusion, Sir Michael applied the framework laid down by Clarke LJ at paragraph 16 of Mohammed Al Fayed and Others v The Commissioner of Police of the Metropolis [2002) EWCA Civ 780 which it is worth setting out here in full:
“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.”
On the facts, Sir Michael found that there was no question that the Defendants’ solicitors appreciated that there had been a mistake, and therefore the only question for him was whether or not the fact of a mistake should have been obvious to a reasonable solicitor in their position. His conclusion was as follows [at 7] :
“I am entirely satisfied that a reasonable solicitor was entitled to assume that there had been an intentional disclosure of the relevant witness statements…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.”
As to the residual question of whether there were any other circumstances which would make it unjust or inequitable not to grant relief, the learned judge was able to find none, especially in the circumstances of this case, where the initial disclosure had been deliberate, rather than completely accidental.
In light of prior authority, and for the reasons set out by the learned judge, the logic of his decision to allow the Defendants to rely upon the privileged material in the witness statements cannot, perhaps unfortunately, be faulted. This was a case in which the disclosure had been made in a disclosure list and the error had not been brought to anybody’s attention until the very eve of trial. Needless to say, it is a salutary lesson to all in practice, and especially those working on large-scale and/or complex litigation to have in place systems for checking and double checking the work of colleagues undertaken at each stage. No-one is perfect or immune to human error. It is best, of course, to pick up errors before a particular step in litigation has formally been taken. But even after such a step has been taken, if such errors are picked up quickly, notwithstanding the rigours of the CPR, their adverse consequences stand a much greater chance of being contained or even expunged. Here it is an open question whether, had the matter been identified immediately after disclosure lists had been served, or even very soon after inspection had taken place, and the Defendants’ solicitors quickly notified of the mistake, the decision would have been different. What is clear is that the Claimants’ arguments for exclusion would have been strengthened.
About the Author
Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.
Significance of Enforcement of Judgments as a Factor in Determining Jurisdiction
In PJSC v Mints  EWHC 692 (Comm) Sir Nigel Teare considered the issues of jurisdiction and service out of the jurisdiction in relation to a Russian dispute. Four of the defendants were resident in England, and three were resident in the United States, Israel, and Russia respectively. The question for the court was whether Russia or England was the forum conveniens for the dispute.
Sir Nigel was in no doubt that the dispute at hand was a Russian case. The Claimants and some of the Defendants were Russian; the alleged wrongdoing occurred in Russia; the alleged losses were sustained in Russia; the causes of action relied upon were creatures of Russian law; and most of the documents were in Russian. The only reason for bringing claims against the US, Israeli, and Russian resident defendants, was that the first four defendants were resident in England.
It was not suggested that the Claimants could not have chosen to sue the English-resident defendants in Russia. Rather, the judge considered there to be good evidence that those defendants would have contested enforcement of a Russian judgment on the basis that the Russian proceedings would not have been fair. On that basis, the judge accepted that suing the English-resident defendants in England was the only rational choice, given the prospects of enforcing any Russian judgment obtained: “The ease with which a judgment can be enforced has long been recognised as a legitimate juridical advantage”. The judge therefore concluded that the forum in which the claims against the foreign-resident defendants could be “suitably tried for the interests of all the parties and for the ends of justice” was England.
Sir Nigel then went on to consider the Claimants’ failure to disclose to the court the existence of insolvency proceedings in which damages were claimed against two of the foreign-resident defendants. Such information was material to the exercise of the court’s discretion to grant permission for service out of the jurisdiction. The judge found the failure to be a serious omission, but after considering whether to set aside the order for service out (to mark the duty of full and frank disclosure), held that the interests of justice did not require the setting aside of the order and that the Claimants’ breach could be sufficiently sanctioned by an appropriate order as to costs.
Members of chambers have written recently of the expiry of the Brexit transition period, and of the greater importance of common law rules on jurisdiction, with a particular focus on the forum (non) conveniens enquiry. In this regard, the decision in PJSC v Mints highlights the significance of the reputations of alternative forums in international disputes.
About the Author
Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.
On 23rd March the Ever Given, a 400 metre long container ship, was knocked off course by strong winds during a sandstorm, ran aground, and became wedged across the Suez Canal, one of the busiest shipping routes in the world. The ship, which was sailing from China to Holland at the time, is registered in Panama, owned by a Japanese company, operated by a Taiwanese company, managed by Germans, crewed by Indians, and insured by Japanese and English insurers. It is causing inconvenience to any number of ships owned and operated by an array of nations. The team at 1CL are reminded of our Conflict of Laws exams and of the fact that the area of law in which we work is, in all modesty, the most important and interesting of them all.