Rawlinson and Hunter Trustees SA and Ors v Director of the Serious Fraud Office

The Court of Appeal has ruled - overturning its previous decision in Al-Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780 - that there is no need for a party who has inadvertently disclosed a document to which public interest immunity (“PII”) attaches to demonstrate that the mistake should have been obvious to a reasonable solicitor before the Court will allow the document to be retrieved.

In the Al-Fayed case, the Court of Appeal had held that it was necessary to demonstrate an obvious mistake, as in the case of documents to which legal professional privilege (“LPP”) attaches, because “Once it is accepted that the party concerned is not bound to refuse to permit inspection of a relevant document we can see no reason why (in the absence of particular circumstances in a particular case) different principles should apply to the two situations.”  In the Rawlinson case, which was part of the litigation between the Tchenguiz brothers and the Serious Fraud Office, the Court of Appeal held that such reasoning was not easy to understand and should not be followed, it being not binding because the Court in Al-Fayed had proceeded on the basis of an erroneous assumption of law.  As the Court held:

“PII differs fundamentally from LPP. Once the question has been raised whether it is in the public interest that production of a document, otherwise disclosable, should be withheld, it becomes necessary to balance the public interest in maintaining confidentiality against the public interest in the due administration of justice. If the need for confidentiality outweighs the need to promote the administration of justice, the document must not be disclosed. It would seem to follow that, if a document to which PII properly attaches is disclosed by mistake and an objection is raised to its use in the proceedings, it remains necessary for the court to decide in accordance with established principles whether its use should be allowed, regardless of whether the mistake was, or should reasonably have been, obvious to the recipient.”

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1129.html 

Pushpinder Saini QC and James Segan acted for the SFO in the Court of Appeal.
James Eadie QC and James Segan acted for the SFO in the High Court.