One party inadvertently sends to the other side in litigation a
privileged document. What should they (and the person who receives
it) do? Inadvertent disclosure can happen, particularly in complex
litigation which involves a large number of documents, multiple
document reviewers and issues of privilege, which will not
necessarily be straightforward.
CPR r31.20 provides that, where a party inadvertently allows a
privileged document to be inspected, the party who has inspected it
may use it (or its contents) only with the permission of the court.
Case law has clarified that, in the absence of fraud, the court may
prevent the use of privileged documents only if there has been an
"obvious mistake" in making such documents available for
inspection. As instances of actual fraud are rare, disputes most
commonly arise where one party argues that the privileged material
was obviously disclosed by mistake and the other party states it
believed that privilege had been waived.
