Thousands of documents released in an ‘extraordinary’ inadvertent disclosure should be allowed to be used in a claim over the National Lottery competition, a court has heard.
In an application hearing, Mrs Justice Jefford heard that international firm Hogan Lovells LLP had incorrectly disclosed 4,321 documents containing privileged material to the claimants, the New Lottery Company Limited and Northern & Shell plc.
In written submissions, Sa’ad Hossain KC, for the claimants, said ‘the scale of Hogan Lovells/the Gambling Commission’s purported error is unprecedented’. The claimants seek to use some of the documents in preparing their amended pleadings to the substantive claim. The Gambling Commission argued the application should be refused as the disputed documents were an ‘obvious mistake’.
Hossain said: ‘This is not a case where, in the main, [the documents] have simply gone through a first level review, it has in fact been reviewed by the most senior lawyers in this case.
‘The reality is we are entitled to assume the documents have been disclosed to us not by mistake.’
Hossain told the court 17,000 documents had been reviewed by the time Hogan Lovells wrote stating that some documents had been produced without redactions in error. By the time the firm wrote again stating more than 4,000 documents, which were wholly or partially privileged, had been produced without redactions in error, 30,000 documents had been reviewed. The letter was described in the claimants’ written submissions as ‘an extraordinary further revelation, akin to a “bombshell” communication’.
Hossain told the court that BCLP (Bryan Cave Leighton Paisner), acting for the claimants, 'understandably expected' Hogan Lovells to carry out its disclosure review at the level expected of ‘one of the UK’s leading litigating firms’. BCLP was 'alive to the rare possibility of mistakes and if a document appeared to them to be a mistake, then that is something they would consider’.
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He added: ‘It is relevant that Hogan Lovells' realisation that it had a major issue of disclosure took quite a significant period of time.'
The January letter about the 4,000 documents was about seven weeks after disclosure, he said. ‘These were not mistakes that were…apparent to Hogan Lovells, we do say that is a relevant factor.’
Tamara Oppenheimer KC, for the Gambling Commission, said: ‘We do not accept that BCLP were only on notice of an issue on 17 January. They were on notice earlier during the December correspondence.’
In written submissions, the commission said it 'has sought to be pragmatic and has therefore stated that it will not object to use by [the claimants] of a number of these documents in its amended pleadings, despite maintaining its position that they are privileged and were inadvertently disclosed by way of obvious mistake’.
Oppenheimer told the court BCLP ‘just needed to appreciate or think it was likely that the document was being shared confidentially and that would be enough’ to flag an obvious mistake.
She added: ‘Parties are minded to behave sensibly and honestly. Inadvertent disclosure should not be an opportunity for the receiving party to take advantage.’
In written submissions, she said: ‘It would be unfair and inappropriate if [the claimants] were permitted to take advantage of those obvious errors by bolstering its case through the use of the Commission’s privileged documents.’
Part of the application hearing was held in closed session. In open court, the judge said she was likely to provide a judgment this week.
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