Disclosing a Document by Mistake

In two recent decisions, the courts in Ireland and England have further clarified the law in relation to documents over which privilege could validly have been claimed but which were instead disclosed by mistake.

The Irish case was Byrne & Anor -v- Shannon Foynes Port Company & Anor [2007] IEHC 315.Clarke J. had to decide whether the use by the Plaintiffs of a set of papers disclosed to them could be suppressed. He decided that it could not because the papers had not been recognised as disclosed by mistake and it was not reasonable to suppose that the mistake ought to have been appreciated by the receiving party.

The decision went the same way in the English case of MMI Research Ltd v Cellxion Ltd and others (of which I learned here. Subscription required, but is free.) After a quick search yesterday, I could not find the judgment on-line but it is almost certainly there somewhere.

Both courts were pretty much ad idem on the relevant principles, and the resultant tests, which I would summarise thus:

1. If the mistake is realised to have been such by the receiving party, the documents must be returned
2. Likewise, if it ought to have been realised by the receiving party
3. The test is not whether, having done a detailed assessment of the documents and made further enquiries, the mistake was apparent, but rather whether the mistake was obvious.

On the evidence, in both cases the court held that it could not be established that the receiving solicitors had realised that a mistake had been made. The material received would not have made it obvious to a reasonable solicitor that a mistake had been made.

In the Shannon Foynes case, there was an interesting twist. The receiving party sought to have further disclosure made on the basis that the documents mistakenly disclosed had now been "deployed" in the litigation. Clarke J. refused that application, holding that deployment had not in fact taken place.