In Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd one privileged document (out of 7,389 reviewed) was inadvertently disclosed to the Claimant’s solicitors by a trainee solicitor. This is a common occurrence in large scale electronic disclosure exercises, as Lord Justice Jackson commented in this Judgment.

The assistant solicitor at the Claimant’s firm who initially reviewed the privileged email gave evidence, which was accepted by the Court of Appeal, that he did not recognise that it had been disclosed in error. The senior partner of the firm, who saw the email at a later date, also put forward evidence that he did not recognise that there had been a mistake.

On 19 July 2017, the Court of Appeal rejected the senior partner’s evidence and held that he must have been aware that there had been a mistake.

Lord Justice Jackson said:

“If the inspecting solicitor does not spot the mistake but refers the document to a more percipient colleague who does spot the mistake before use is made of the document, then the court may grant relief. That becomes a case of obvious mistake.”

Lord Justice Jackson also noted that while the privileged email “was not fatal” to the defendant’s case, it had provided “useful ammunition.”