Mohammed v Ministry of Defence

An issue has arisen as to whether the defendant is entitled to redact certain information from documents disclosed in these proceedings on the ground that the information is subject to legal professional privilege. The claimant argues that the defendant has lost the right to do so in circumstances where copies of the documents without such redactions were disclosed, and in some cases referred to in open court, in earlier proceedings and the defendant has allowed the claimant’s solicitors to inspect in these proceedings the unredacted versions of the documents

The earlier proceedings were proceedings for judicial review brought on the application of Maya Evans. Her claim concerned the policy and practice of the UK in transferring to the Afghan authorities suspected insurgents detained by UK armed forces in Afghanistan. The defendant’s policy at the time was that such detainees were to be transferred to the Afghan authorities within 96 hours or released but were not to be transferred where there was a real risk that they would suffer torture or serious mistreatment. The claimant did not dispute the legality of this policy, but contended that the practice of transferring detainees was unlawful on the ground that there was a real risk of torture or serious mistreatment if they were transferred to the Afghan authorities.

The hearing of the Maya Evans action took place in April 2010 and judgment was given in June 2010.

In the Maya Evans proceedings the defendant disclosed a large amount of documentation. The Divisional Court in its judgment given on 25 June 2010 described the disclosure exercise undertaken by the defendant as “massive, costly and time-consuming”: see R (Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). As part of that exercise, information was redacted on grounds that it was (a) irrelevant, (b) protected by legal professional privilege and/or (c) the subject of public interest immunity.

The defendant has also emphasised that the disclosure exercise was carried out under considerable pressure of time and points out that a letter dated 9 November 2009 sent by the defendant’s solicitors to the solicitors for Maya Evans in connection with the disclosure exercise contained the following statement:

Before the current action for damages was commenced, the present claimant brought proceedings for judicial review. In May 2012, the defendant’s solicitors agreed that documents disclosed in the Maya Evans proceedings could be passed by the solicitors who acted for Maya Evans to the solicitors acting for the present claimant for use in his judicial review proceedings.

The claimant subsequently decided to discontinue his claim for judicial review and to pursue the present action for damages, which was commenced in August 2012. In a letter dated 25 February 2013, the defendant’s solicitors agreed that the claimant’s solicitors could inspect for the purposes of this action the documents disclosed by the defendant in the judicial review proceedings without prejudice to the question of whether those documents were indeed relevant to the matters in issue in the present action. Those documents included, by reason of the agreement in May 2012, the documents previously disclosed in the Maya Evans proceedings.

On 3 June 2013 the defendant’s solicitors asked the claimant’s solicitors to indicate which documents disclosed in the judicial review proceedings they considered relevant to the preliminary issues which had by then been ordered in the present action. The purpose of the request was said to be so that the redactions in any documents agreed to be relevant could be reviewed and public interest immunity claimed where necessary.

On 11 June 2013 the claimant’s solicitors sent a list of such documents which included a number of documents originally disclosed in the Maya Evans proceedings. In further letters dated 8 October 2013 and 14 October 2013 the claimant’s solicitors pressed for confirmation that the defendant was content for the claimant to rely on the versions of the documents which his solicitors already had in their possession. On 15 October 2013 the defendant’s solicitors requested an explanation of the relevance of each document from the Maya Evans proceedings included in the list provided. Such an explanation was given on 17 October 2013.

On 7 November 2013 the defendant’s solicitors wrote to say that they had now reviewed the documents disclosed in the Maya Evans proceedings included in the claimant’s list and found that they contained some material which through error had not been redacted. This was said to include some material over which legal professional privilege should have been claimed.

On 20 November 2013 the defendant’s solicitors provided copies of the documents said to contain such privileged information with that information now redacted.

The claimant does not dispute that the information which the defendant now seeks to redact is subject to legal professional privilege but argues that the right to assert such privilege has been waived. In the case of two documents it is also submitted that the right to claim privilege has been lost because the information has entered the public domain.

I heard argument on this issue (along with issues of public interest immunity) on 22 November 2013. However, because of the short notice at which the issue arose, I gave the claimant permission to file evidence and both parties permission to file further written submissions on 25 November 2013 and reserved my judgment on the issue.

The term ‘waiver of privilege’ is an imprecise one, which is capable of referring to at least five legally distinct ways in which a right to assert privilege may be lost:

What might be called a ‘true’ waiver occurs if one party either expressly consents to the use of privileged material by another party or chooses to disclose the information to the other party in circumstances which imply consent to its use. Such a waiver may be either general or limited in scope.

Where a party waives privilege in the above sense by deliberately deploying material in court proceedings, the party also loses the right to assert privilege in relation to other material relating to the same subject matter: see e.g. Great Atlantic Insurance Co. v Home Insurance Co. [1981] 1 WLR 529. The underlying principle is one of fairness to prevent ‘cherry picking’: see e.g. Brennan v Sunderland City Council [2009] ICR 479, 483-4 at [16].

Similarly, a party who by suing its legal advisor puts their confidential relationship in issue cannot claim privilege in relation to information relevant to the determination of that issue. Again the governing principle is one of fairness: see e.g. Paragon Finance v Freshfields [1999] 1 WLR 1183.

Because privilege only protects information which is confidential, if the information concerned ceases to be confidential, privilege cannot be claimed. Where a party does an act which has the effect of making information public, this has sometimes been described as a waiver of privilege (see e.g. Goldstone v Williams (1899) 1 Ch 47), but it is more accurate to say that privilege cannot be claimed because confidentially has been lost.

Where a party comes into possession of privileged material by any means, and even if without the knowledge or consent of the other party, the receiving party is free to use such material subject to the equitable jurisdiction of the court to restrain a breach of confidence.

It is the last two of these principles which are relied on by the claimant in this case.

As mentioned, two of the documents now in issue were referred to in open court at the hearing of the Maya Evans case. The claimant submits that the documents thereby entered the public domain and lost their confidentiality.

The defendant disputes this. In a further note submitted after the oral argument, the defendant argues that confidentiality attaches to information and is not lost merely because reference is made in open court to a document which contains confidential information if the information itself is not made public.

I accept that information does not necessarily enter the public domain just because a document containing it is mentioned in open court, or even because the information itself is disclosed in open court. However, there are, as I see it, two routes by which in such circumstances the confidentiality of information may be lost.

First, sufficient publicity may be given to information disclosed in open court that it can no longer be regarded as confidential. This is a question of fact and degree. Frequently and no doubt typically, however, passing references to documents in open court do not attract sufficient publicity to cause them to lose their confidentiality in this way.

Second, there is a general public right of access, based on the principle of open justice, to documents read or referred to in court: see R (Guardian News & Media Ltd) v Westminster Magistrates Court [2013] QB 618. For this reason, I take the default position to be that reference to a document containing confidential information in open court will put the information into the public domain and deprive it of its confidential character. This is, however, subject to the power of the court to prevent or restrict the further publication or use of the information, and thereby preserve its confidentiality, if there is good reason to do so.

The subsequent use of documents disclosed in litigation is now governed by CPR r.31.22. This provides:

Usually, an application for an order under CPR r.31.22(2) is made in the proceedings in which the document has been disclosed. There is nothing in the language of the rule, however, which so confines it; and I see no reason in principle why such an application should not be made in subsequent proceedings to restrict or prohibit the use of a document by a party who has acquired the document from a party to whom it was disclosed in the earlier proceedings. The fact that no application is made until much later may be a very relevant factor in deciding whether to make an order. However, it should not preclude the making of an order if it is still practicable to preserve the confidentiality of information contained in the document and the balance of competing interests is demonstrably in favour of doing so.

In my view, therefore, the fact that two of the documents now in issue were referred to in open court at the hearing of the Maya Evans case does not of itself prevent the defendant from claiming privilege over information disclosed in those documents. Its effect is to place the onus on the defendant to apply for and justify the making of an order under CPR r.31.2(2), whereas for the other documents in issue it is the claimant who must seek the permission of the court.

That requirement to seek permission arises, where inadvertent disclosure of privileged material has occurred, pursuant to CPR r.31.20. This provides:

In Al Fayed v Commissioner of Police of the Metropolis (No 1) [2002] EWCA Civ 780, the Court of Appeal considered that the principles which govern the operation of this rule are the same as apply at common law where an injunction is sought to prevent the use of inadvertently disclosed confidential information. The Court of Appeal summarised the relevant principles (at paragraph 16 of the judgment) as follows:

The claimant produced a confidential annex to its skeleton argument for the hearing on 22 November 2013 which identifies passages in six documents which the defendant now proposes to redact where the claimant takes issue with the redaction. In the defendant’s open bundle the redacted versions of these documents appear at tabs H1, J6, H3, J3, J5 and J7. I shall rule on whether the claimant is entitled to assert privilege over the particular passages in those documents highlighted in the claimant’s annex. If disputes arise in relation to any other passages or documents, I hope they can be resolved by agreement in the light of the approach set out in this ruling.

In the further note filed after the oral argument, the defendant has submitted that, before any question of waiver arises, the court should consider whether the information in question meets the standard disclosure test. This is on the basis that the claimant is said to be seeking disclosure of the information for which the defendant is now claiming privilege.

I do not accept that contention. The claimant is not seeking disclosure and does not need to do so, as his solicitors already have the documents in unredacted form in their possession and have been allowed to inspect them in these proceedings (in so far as the defendant’s agreement to do so was needed). The defendant has reserved the right to contest the relevance of the documents but that will go to whether they are admissible in evidence. The present question is only whether the court should make an order to preclude their use on grounds of confidentiality. In any event, I do not consider that any of the passages highlighted by the claimant is so clearly irrelevant that I should exclude the material at this stage.

As mentioned earlier, it is not in dispute that the information which the defendant now wishes to redact is privileged. Nor is it in dispute that the disclosure of that information both in the Maya Evans proceedings and in this action – by allowing the present claimant’s solicitors to inspect the documents disclosed in the Maya Evans proceedings – was inadvertent. In these circumstances, applying the principles stated in Al Fayed, it is too late for the defendant to claim privilege unless the documents were made available to the claimant’s solicitors for inspection as a result of an obvious mistake.

It seems to me that such an obvious mistake would similarly need to be the starting point for an attempt to restrain the use of the two documents referred to in open court in the earlier proceedings. The grounds required to justify restricting the use of a privileged document which has been inadvertently disclosed must in principle be at least as strong, if not stronger, where the permission of the court is not needed to use the document as are required where such permission is needed under CPR r.31.20. CPR r.31.20 does not apply to the documents referred to in open court as the solicitors for Maya Evans were entitled to pass those documents to the present claimant’s solicitors, who are likewise entitled to use them irrespective of the defendant’s agreement, unless and until an order is made under CPR r.31.22(2).

In each case, even if an obvious mistake is shown, the question will ultimately be whether it is just and equitable to prevent use of the material in these proceedings.

The claimant’s solicitor, Ms Keren Adams, has made a witness statement in which she says that the documents now in issue first came to her attention in May 2013 when reviewing the trial bundles from the Maya Evans case to identify any documents on which the claimant wishes to rely in the present proceedings. She says that she did not believe that the information contained in the documents, despite including references to internal legal advice, had been disclosed in error. Ms Adams gives several reasons for this. For present purposes it is sufficient to say that I accept her evidence that she did not appreciate that any mistake had been made by the defendant until 7 November 2013, when the defendant first indicated the intention to claim privilege over previously unredacted parts of some of the documents on which the claimant wishes to rely.

I must therefore next consider whether it would have been obvious to a reasonable solicitor who inspected the documents that a mistake had been made. The formulation of the fifth principle stated by the Court of Appeal in Al Fayed (quoted above) implies that the court should assume for this purpose that detailed consideration is given by the solicitor to the question whether the documents have been made available for inspection by mistake. That assumption seems to me, with respect, to be appropriate: it would not generally be equitable to allow a party to benefit from a mistake because his solicitors have not given detailed consideration from which the mistake would have been obvious. Such consideration should clearly take account of background information within the solicitor’s knowledge. However, since the test is one of obviousness, it is also clear that where such consideration gives rise to mere suspicion or doubt about the matter the reasonable solicitor is not obliged to make any further enquiries of the other party before making use of the documents.

I think it unlikely that Ms Adams gave detailed consideration when reviewing the documents in May 2013 to the question whether the passages for which privilege is now claimed were left unredacted by mistake. I think it more likely that this was simply not something that occurred to her until the claim of privilege was made. Even so, the fact that it was not evident to her that a mistake had been made is, I think, still relevant although not decisive when considering whether the existence of the mistake would be obvious to a reasonable solicitor in her position who received the documents.

I do not consider that the defendant is entitled to rely, as against this claimant, on the letter dated 9 November 2009 referred to at paragraph 5 above. That is because the letter was sent in the Maya Evans proceedings to the solicitors acting for the claimant in those proceedings, and there is no evidence that the present claimant’s solicitors were or ought to have been aware of the letter before it was produced on this application. Nevertheless, the claimant’s solicitors would have been aware that the process of disclosure in the Maya Evans case was a massive exercise undertaken under considerable pressure of time, with a resulting possibility of error. Furthermore, there is no evidence which I have seen to suggest that any further review of the documents disclosed in the Maya Evans proceedings was carried out by the defendant at the time when the defendant agreed to those documents being inspected by the present claimant’s solicitors either for use in the judicial review proceedings or for use in the current action.

Two other matters which the defendant contends that the claimant’s solicitors would reasonably be expected to have known are:

The fact that it is rare for Government to disclose privileged material especially without making it expressly clear that that is being done (and why); and

The fact that the information disclosed included records of advice given by the Attorney General in circumstances where there is a well known and well established convention that disclosure is not made of the fact that a Law Officer has been consulted, let alone of the content of any such advice.

In her witness statement Ms Adams has not disputed these facts or her awareness of them.

A reasonable solicitor who gave detailed consideration to the question would also, however, have been aware that in the Maya Evans case the defendant had placed positive reliance on the defendant’s view that the UK did not have the power to intern insurgents captured in Afghanistan but only had power to detain them temporarily (for a period of up to 96 hours): see the defendant’s skeleton argument for the hearing in that case at paragraph 18.

The first document listed in the claimant’s annex (H1 in the defendant’s bundle) is a discussion of detention policy in Afghanistan including the legal basis for it. The document contains several passages now proposed to be redacted which expressly record legal advice. However, although the defendant would not ordinarily be expected to disclose the content of any legal advice, in circumstances where he was placing positive reliance in the Maya Evans proceedings on the absence of any legal basis for detaining individuals beyond 96 hours as part of the background to and imperative need for the UK’s transfer policy, I do not consider that it would be obvious to a reasonable solicitor that the defendant had not deliberately disclosed the content of the relevant legal advice.

It would be all the less obvious that the disclosure was inadvertent given the reference made to document H1 in open court by the defendant’s counsel at the hearing of the Maya Evans case. The purpose of the reference was to show that active consideration had been given to obtaining international agreement to an extension of the period for which the UK could detain individuals and the improbability that any such extension could be agreed. It is evident from the page reference and what was said by the defendant’s counsel that the part of the document to which the court’s attention was being directed was paragraph 11, which set out three possible solutions to the problem of detention, and paragraph 12, which pointed out difficulties which each of these lines of action faced. Paragraph 12 expressly referred to “MOD Legal Advice”. In my view, it would reasonably be assumed that the decision to refer to this advice was deliberate. I consider that the same applies to other references to legal advice in the same document which formed part of the background to the issues to which the defendant specifically drew attention in argument.

Different considerations apply, in my view, to the references included in two other documents (J6 and J3) to advice given by the Attorney General. Neither of the two passages is relevant to the issues which I have just mentioned. Moreover, I accept the defendant’s contention that a reasonable solicitor would be aware of the established convention that the Government does not disclose the advice of Law Officers. In these circumstances I consider that it would have been obvious to the reasonable solicitor that the passages recording such advice had been left unredacted by mistake.

There are no other circumstances which in my view make it inequitable to redact those passages now. Furthermore, I am told that in the case of document J3 the defendant in fact wrote to the solicitors for Maya Evans on 10 March 2010 informing them that the passage in question had been inadvertently disclosed, claiming legal professional privilege, enclosing a correctly redacted version of the document and asking that the version inadvertently disclosed should be shredded. This raises an additional equity in favour of restraining the subsequent use of the unredacted version which ought never to have been given to the claimant’s solicitors.

In relation to document H3, I do not consider that a reasonable solicitor would regard the information which the defendant now wishes to redact as falling into any different category from the rest of the paragraph which contains it and which the defendant is not otherwise claiming to be privileged. I therefore do not think it would have been obvious on reviewing the document that a mistake had been made in disclosing the information or that it would be equitable now to prevent the claimant from using it.

In relation to document J5, I do not consider it at all obvious that the passage proposed to be redacted records legal advice, as opposed to the public position of the UK – which has no doubt been informed by legal advice but is not itself privileged information. In these circumstances I again do not think it would be obvious to a reasonable solicitor that a mistake had been made in disclosing the information or equitable to prevent the claimant from using it.

For these reasons, I decline to give permission to the claimant to use in these proceedings the unredacted versions of the two documents (J6 and J3) which refer to advice given by the Attorney General. In the case of document J6, which was referred to at a public hearing in the Maya Evans proceedings, I will also make an order under CPR r.31.22(2) that no use may be made by the claimant of the unredacted version of the document. I do, however, give permission to the claimant, in so far as it is needed, to use the other documents listed in the claimant’s annex (H1, H3, J5 and J7) without the redactions identified in that annex which the defendant now wishes to make.