(1) Abdel Hakim Belhaj v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Green |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] EWHC 514 (Admin) |
| Date | 15 March 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5488/2016 |
[2018] EWHC 514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Green
Case No: CO/5488/2016
and
Ben Jaffey QC (instructed by the Leigh Day) for the Claimants
John McGuinness QC and Tom Little (instructed by the Government Legal Department) for the Defendant
David Perry QC and Victoria Ailes (instructed by BCL Burton Copeland) for the 1 st Interested Party
The 2 nd Interested Party did not attend and was not represented
James Eadie QC and Ben Watson (instructed by the Government Legal Department) for the 3 rd Interested Party
Zubair Ahmad (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 14 th and 15 th February 2018
OPEN JUDGMENT FOLLOWING CLOSED HEARING ON 15 FEBRUARY 2018
Introduction
This is a second judgment on the scope of privilege to which we have both contributed. Argument in relation to this issue was heard in closed proceedings. We are of the view, however, that much of what we wish to say can be included in an open judgment, and in the interests of ensuring that as much as possible of these proceedings is available in the public domain we are producing this open judgment on the point. In a different open judgment we address the broader arguments concerning waiver of privilege. The context and background to this case has been described already in a number of open judgments: see for example [2017] EWHC 3056 (Admin). In essence the claim is a challenge to the decision of the DPP not to mount a prosecution for alleged cooperation and participation in the rendition of the Claimants to Libya.
The point in issue arises from the submission by the Secretary of State that there have been a number of errors in disclosure of the three key documents (the advice provided to the DPP of Richard Whittam QC, the review note by Sue Hemming and the VRR decision by Gregor McGill). The documents have been identified in OPEN but disclosed in redacted form and only into CLOSED. The Secretary of State has indicated that a number (it is said 8) of examples of “overclaim” of legal professional privilege [“LPP”] have been corrected, and we have been shown examples of those. Those corrections are in themselves uncontroversial, since of course they lead to greater information being revealed.
The argument arises over a larger number (20) of passages where the Secretary of State argues that material was inadvertently left unredacted in the original disclosure which should have been redacted on the basis of LPP. These “underclaims” were notified by the Secretary of State and are now sought to be corrected. The fact of this application has been made open in an approved communication to the Claimants' lawyers of 25 January 2018, and a communication request of 7 February 2018 from the Special Advocate which has been made open. No communication has revealed any of the content of an “overclaim” or an “underclaim”.
Inadvertent Waiver
CPR 31.20 provides:
“Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.”
As a number of commentators have observed, the case law on inadvertent waiver is not entirely reflective of the terms of CPR 31.20. The manner in which the rules governing inadvertent disclosure operate was set out by the Court of Appeal in Mohammed Al Fayed et ors v The Commissioner of Police for the Metropolis et ors [2002] EWCA Civ 780 [“ Al Fayed”]. This is presently viewed as the definitive summary of the relevant principles. A number of authorities were cited to the Court in Al Fayed: Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027, Derby & Co Ltd v Weldon (No 8) [1991] 1 WLR 73, Pizzey v Ford Motor Co, The Times 8 March 1993; International Business Machines Corporation v Phoenix International (Computers) Ltd [1995] 1 All ER 413; and Breeze v John Stacey and Sons Ltd, unreported, 21 June 1999. All the cases were concerned with LPP. Lord Justice Clarke in Al Fayed summarised the principles which flowed from the decided case law in the following way:
“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.”
In principle, and without tying the illustrations below to the facts of the present case, inadvertent...
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