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17 April 2018
Abdel Hakim Belhaj and Fatima Boudchar claimed that they were unlawfully rendered from Thailand to Libya in March 2004, during and following which they were tortured and Belhaj was summarily sentenced to death.
In 2012 the Metropolitan Police Service began an investigation into complaints of ill treatment of detainees. Following this, consideration was given to whether there should be a prosecution for – among other things – misconduct in public office connected with the rendition.
In 2016 the head of the Special Crime and Counter-terrorism Division of the Crown Prosecution Service (CPS) concluded in a letter to the claimants that there should be no such prosecution, citing insufficient evidence. In response to the letter, the claimants invoked their victims' right to review. The director of legal services at the CPS conducted the review and stated in an August 2016 letter that he agreed with the original decision.
In October 2016 the claimants sought to challenge the decision not to prosecute by beginning judicial review proceedings against defendants that included the director of public prosecutions (DPP) and the secretary of state for foreign and commonwealth affairs (FCO). Special advocates advised the claimants in respect of the judicial review.
Two issues relating to privilege arose during the judicial review proceedings:
The court considered these issues in two related judgments: Belhaj v Director of Public Prosecutions ( EWHC 513 (Admin)) and Belhaj v Director of Public Prosecutions ( EWHC 514 (Admin)). Each issue is considered in turn.
The government had communicated privileged material to the Metropolitan Police Service, the CPS and the DPP when the victims' right to review was invoked. All of the privileged material that was communicated was subject to a limited waiver that stated the following (or terms indistinguishable therefrom):
"Legal Professional Privilege
There are some documents provided to the investigation that may be subject to legal professional privilege. The FCO provides these papers for the sole purpose of assisting with this investigation and do not consider to have waived legal privilege for any other purpose, including any future prosecution or civil claim. By convention the FCO would not confirm nor deny publicly whether the advice of the Law Officers has been sought."
The claimants neither disputed that legal professional privilege was an absolute privilege, nor that the government parties could invoke such privilege where they had received legal advice – instead, they contended that the limitation on the waiver was ineffective.
The claimants argued that the processes of decision and internal review and the subsequent process of judicial review formed a single, composite whole, and that the waiver for the purposes of the decision and internal review therefore extended to cover the judicial review. Acknowledging that there was no direct precedent, the claimants relied on the logic of the Scottish decision in Scottish Lion Insurance Co Ltd v Goodrich Corp ( CSIH 18).
The court rejected the claimants' argument, stating that in Scottish Lion the different procedural stages were clearly connected due to the necessity and inevitability of one stage following from the other, justifying the application of the waiver for one stage to the other stages. In this case, the court found that there was no inevitable or necessary nexus between the legal advice provided to the DPP and its decision not to prosecute, and the subsequent judicial review of that decision.
The court concluded that since the waiver of privilege did not extend to the judicial review, privilege could be claimed over the materials in question for the purposes of the judicial review.
The FCO submitted that there had been a number of errors in disclosure; more than 20 passages of material which should have been redacted on the basis of legal professional privilege were inadvertently left unredacted in the original disclosure.
The first question for the court was whether there had been an inadvertent waiver of the privileged material. Rule 31.20 of the Civil Procedure Rules states that "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".
In determining where there had been such a waiver, the court followed Al Fayed v The Commissioner of Police for the Metropolis ( EWCA Civ 780), where the Court of Appeal identified 10 principles from existing case law that explain how the rules governing inadvertent disclosure operate.
The court specifically referred to the 'obviousness' consideration identified in Al Fayed:
"vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:
a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;
and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief."
Before applying the obviousness consideration to this case, the court identified relevant contextual facts, including that:
Based on these facts, the court concluded that a reasonable lawyer receiving the material to which the privilege related would have appreciated – among other things – that the provision of material otherwise covered by privilege had been provided inadvertently. The court found intrinsically counterintuitive and improbable the suggestion that the state would deliberately disclose part, but not all, of its legal advice in such sensitive proceedings.
The claimants also advanced an argument about 'cherry picking', relying on the test in Great Atlantic Insurance Co v Home Insurance Co ( 1 WLR 529), which states that a waiver of privilege of part of an unseverable document constitutes a waiver of privilege of the whole document. The claimants argued that part of the legal advice material had been disclosed following a thorough and conscientious consideration of the processes by which disclosure was made, and the sensitivity of the material. They concluded that as the sections of the legal advice material to which privilege had been waived were not severable from the rest of the legal advice material, the waiver applied to at least the disclosed parts, but in principle to the entirety of the legal advice material.
The defendants disputed the claimants' interpretation of Great Atlantic, arguing that the statement in the judgment that "it might be or appear dangerous or misleading to allow the plaintiffs to disclose part of the memorandum and to assert privilege over the remainder" meant that the test for cherry picking is one that seeks to identify where a party intends to gain a tactical advantage by the partial disclosure of privileged materials. They concluded that in this case there had been an inadvertent disclosure of privileged material and therefore cherry picking had not occurred, and as such there had not been a waiver of part (or all) of the legal advice material.
The court agreed with the defendants' interpretation, confirming that cherry picking was concerned with a "knowing, deliberate, deployment resulting in partial disclosure. Absent such an intention, the issue of cherry picking does not arise". Applying these principles to this case, the court found that the defendants had not intentionally used legal advice in a selective manner to obtain an advantage – instead, they had made an inadvertent disclosure of privileged material.
On the basis that there had not been an inadvertent waiver, and that there had been no cherry picking, the court allowed the defendants to reassert legal professional privilege over the materials in question and stated that no use may be made of these matters in these proceedings or otherwise.
Both decisions clarify issues relating to the waiver of privilege.
The first decision suggests that unless the related proceedings can be considered a single, composite, whole process, the court will be reluctant to infer an extension of a waiver of privilege to cover a later proceeding where the party providing the waiver had intended for the waiver to be limited to the initial proceeding.
The second decision reinforces the view that cherry picking involves an intentional partial disclosure of privileged documents. Where the partial disclosure was inadvertent, cherry picking will not be a reason to prevent privilege being reasserted over the materials in question. Parties should take care in ensuring that privileged materials are not inadvertently disclosed, otherwise they run the risk of having privilege waived for part – or all – of the materials in question if they are unable to prove that their disclosure was unintentional.
For further information on this topic please contact Andy McGregor or Steven Rajavinothan at RPC by telephone (+44 20 3060 6000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
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