Al Fayed and Others v Commissioner of Police of the Metropolis and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Auld,Lord Justice Tuckey,Mr Justice Jackson |
| Judgment Date | 25 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1579,[2002] EWCA Civ 780 |
| Docket Number | Case No: A2/2002/0758,Case No: A2/2002/2338 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2004 |
Lord Phillips Master of the Rolls
Lord Justice Robert Walker and
Lord Justice Clarke
Case No: A2/2002/0758
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Curtis
Royal Courts of Justice
Strand,
London, WC2A 2LL
Michael BRIGGS QC, Philip MARSHALL and Ingrid NEWMAN (instructed by Lewis Silkin) for the Claimants/Appellants
Duncan MACLEOD and Perrin GIBBONS (instructed by DS Hamilton, Directorate of Legal Services at New Scotland Yard) for the First, Second, Fourth, Fifth and Sixth Defendants/Respondents
Simon FREELAND QC (instructed by Rowe Cohen for the Third Defendant/Respondent
This is the judgment of the court.
Introduction
This is an appeal from an order made by Curtis J on 26 March 2002 in which he ordered the appellants to return two written opinions of Mr Orlando Pownall of counsel, dated 26 May 1998 and 5 July 1998 respectively, to the respondents. We shall call them "the Pownall opinions". They had been made available to the appellants by the solicitor for the respondents (other than the third respondent) when they gave inspection of documents in this action on 24 October 2001. It is common ground, on the one hand, that the Pownall opinions were included in the documents to be inspected by mistake and, on the other hand, that the appellants' solicitors, Lewis Silkin, were not aware of any mistake until counsel so stated on 17 January 2002.
The respondents applied for an order that the Pownall opinions be returned to them and that the appellants be restrained from making any use of them or their contents for the purposes of the trial. The judge granted those applications and the appellants now appeal from his order. They do so pursuant to permission granted by Dyson LJ. The judge held that it would have been obvious to a reasonable solicitor in the position of Lewis Silkin that the Pownall opinions had been made available to them by mistake or, put another way, that a reasonable solicitor in their position would have appreciated that the respondents' solicitor had made an obvious mistake in sending them copies of the opinions.
Background
On various dates in March 1998 Mr Al Fayed and the other appellants were arrested on suspicion of theft or criminal damage in connection with the alleged theft of and damage to the contents of a safe deposit box which Mr 'Tiny' Rowland kept at Harrods. The arrests were attended by a certain amount of publicity. The investigations of the allegations were conducted by the Organised Crime Group ("OCG") of the Metropolitan Police of which the second, third, fourth and fifth respondents were members. The third respondent carried out the investigation and his actions were overseen by the second respondent, who was his superior.
The appellants were released and in due course the OCG investigation was brought to an end in about July 1998 without any charge having been brought against any of them. The appellants' case is that the arrests were wrongful and that the respondents are liable for false imprisonment. The appellants' case is in outline as follows. First, the arrests were made for improper motives, including a desire either to avoid criticism by Mr Rowland of their investigation of his complaint or to assist him in his civil claims, rather than because of a real suspicion of criminal conduct. Secondly, there were no reasonable grounds to suspect any of the appellants of theft or criminal damage. Thirdly, in any event the arrests constituted the unreasonable exercise of the police discretion whether or not to arrest, both because of the full co-operation in the police investigation then being offered by the appellants and because of the absence of any reasonable prospect that criminal proceedings could be mounted against them.
The respondents' case is that the appellants were lawfully arrested with reasonable cause. Both parties have given detailed particulars of their respective cases. This appeal is concerned with only one aspect of the facts. The respondents rely upon advice given by Mr Pownall. On 25 February 1998 the police sought Mr Pownall's advice in his capacity as Senior Treasury Counsel. He advised in conference on that date and subsequently in writing on 3 March 1998. The police case in this regard is pleaded in paragraph 23(a) of the re-amended defence as follows:
"… he advised that he considered the proposed arrests and interviews at a police station to be appropriate. It is further admitted and averred that Senior Treasury Counsel after having been made aware of the evidence against the Claimants and the case developments, including representations made on behalf of the Claimants by Mr Burton [who was their solicitor], advised that he could not foresee any justifiable criticism of the proposed arrests. It is admitted that Senior Treasury Counsel stressed that ultimately the decision to arrest was a police decision. It is averred that Senior Treasury Counsel had previously advised on 17 th November 1997 that the available evidence disclosed a prima facie case of theft."
That opinion has been described in argument as "the arrest opinion" in contrast to the Pownall opinions dated 26 May and 5 July 1998 respectively, which played a part in the police decision not to charge the appellants.
The Issue
The arrest opinion was obtained in response to instructions given to Mr Pownall by the police, whereas the Pownall opinions were obtained in response to instructions given by the CPS. The CPS subsequently made copies of them available to the police in the circumstances set out below. It was copies of those copies which were sent to the appellants' solicitors as part of the process of inspection of documents under CPR Part 31.
It is common ground that while in the possession of the police they were the subject of legal professional privilege ("LPP"). The police say that they were also the subject of class public interest immunity ("PII"). The appellants say that when they were physically provided to their solicitors the police were no longer entitled to assert either LPP or PII in respect of them. The police say that they were made available to the appellants by mistake and that that fact would have been obvious to a reasonable solicitor in the position of the appellants' solicitors, Lewis Silkin. The judge accepted that submission. The appellants say that he was wrong to do so.
Before considering the facts it is convenient to summarise the relevant legal principles.
The Legal Principles
The relevant principles were not in dispute before the judge. Nor were they in dispute before us, at any rate so far as LPP is concerned. Such differences as there were between the parties were essentially differences of emphasis.
Disclosure of documents is now governed by CPR Part 31. By rule 31.2 a party discloses a document by stating that the document exists or has existed. By rule 31.3 a party to whom a document has been disclosed has a right to inspect the document except in certain circumstances, which by rule 31.3(1)(b) include the case where the party disclosing the document has a right or duty to withhold inspection of it. Such a right may exist on a number of grounds including LPP and PII. However, in both those cases a party may choose not to rely upon LPP or claim PII.
Rule 31.19 provides machinery for the resolution of disputes as to whether a party has a right or duty to withhold inspection. By rule 31.19(3) a person who wishes to claim that he has such a right or duty must state in writing both that he has such a right or duty and the grounds upon which he relies. By rule 31.19(4) that statement must be made in the list in which the document is disclosed or, if there is no list, to the person wishing to inspect the document. By rule 31.19(5) a party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.
The relevant question in this appeal is in what circumstances a party who has inspected copy documents which were subject to LPP or PII, but which have been voluntarily, but mistakenly, sent to him for inspection must return them or may be restrained from using them in the litigation in which they were disclosed. There have been a number of cases in which this problem has arisen in comparatively recent times, including several before the advent of the CPR and at least one since the CPR came into force. They have all considered the circumstances in which an injunction might be granted to order the return of the documents or to restrain their use.
Rule 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."
So far as we are aware, until now no-one has suggested that different principles apply to the operation of that rule from those applicable to the question what, if any, injunction should be granted.
We were referred to a number of cases including 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 and International Business Machines Corporation v Phoenix International(Computers) Ltd [1995] 1 All ER 413 under the RSC...
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Subject Index
...132Ford v Wainwright, 477 US 499 (1986)...................................................... 16Al Fayed v Commissioner of Police[2002] EWCA Civ 780........... 253, 254Allan v United Kingdom (2003) 36EHRR 12 ..........................................170Austria v Italy (1963) 6 Yearbook 740.......
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