A High Court judge has allowed claimants to use some of the 4,000 documents inadvertently disclosed by the defence in its claim over the National Lottery competition.
Hogan Lovells LLP, for the Gambling Commission, inadvertently disclosed more than 4,000 privileged or partially privileged documents, the judgment in The New Lottery Company Limited & Anor v The Gambling Commission states. The New Lottery Company wished to rely on 128 of those documents - which the commission resisted.
Granting permission for some to be used, Mrs Justice Jefford said: ‘There are no rigid rules but the court is more likely to give permission if it was not obvious that the documents were disclosed as a result of a mistake; the court is more likely to find the mistake obvious if it would have been obvious to a reasonable solicitor; and the reasonable solicitor’s conclusion after detailed consideration will be a relevant, and potentially important, factor.’
She added: ‘The test of obviousness should not be confined to what is wholly obvious at first blush. But whether any further inquiry ought to be carried out will be entirely case-and-document-specific.’
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The judge said that the ‘reasonable solicitor’ is entitled to start from the premise that documents have been deliberately disclosed and take into account the character of the firm giving disclosure and the manner in which disclosure has been given as well as the volume of disclosure.
In a postscript to the judgment, she said: ‘For the avoidance of doubt... unless expressly stated in this judgment I have made no decisions as to whether any particular document is or is not privileged, and the fact of the redaction in the open version of this judgment is not to be taken as a decision on the issue of loss or waiver of privilege in this case or more generally.’
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