Inadvertent Disclosure of Privileged Documents and ESP

David Smyth, Senior Partner, Smyth & Co in association with RPC

We wrote about this subject in the June 2014 edition of “Industry Insights” (“Inadvertently disclosed documents”) and noted in passing that it is not a particularly uncommon phenomenon in Hong Kong.

Another recent and interesting case on point is Koay Ai See v St Theresa’s Hospital [2015] HKEC 1053; a case in which the plaintiff’s solicitors mistakenly sent their client’s first expert report to the defendant’s solicitors, even though they only intended to disclose their second expert report.

The mistakenly disclosed report had been specifically referred to in the plaintiff’s list of documents and, according to the judgment, its contents were no less helpful than the report that the plaintiff’s solicitors had intended to disclose.

In these circumstances, one can understand why the defendant solicitors were under the impression that the first report had been deliberately disclosed as part of the plaintiff’s discovery.

That said, the court ordered that the mistakenly disclosed medical report be returned to the plaintiff’s solicitors. The court appears to have been of the opinion that, in the post-CJR era, the defendant’s solicitors ought to have realised that the plaintiff’s solicitors had made an “obvious error” given that the doctor’s name on the medical report disclosed was different to the name of the doctor confirmed in the plaintiff’s Check List Review Questionnaire.

Applying the standard of a “hypothetical reasonable solicitor”, the court decided that the defendant’s solicitors should have queried why they were being sent the medical report of a doctor different to the plaintiff’s nominated medical expert. An interesting quote from the judgment is as follows (para. 22):

“And once this query was raised, the mistake would have been discovered and made obvious. In practice, the inadvertent listing of privileged documents ought rarely to create any problems. In the current regime of co-operative communication, a solicitor, who is unsure whether privilege has been deliberately waived by the disclosure of a privileged document, should confirm the position with the disclosing solicitor.”

Readers can make of that what they will. Those wanting more can review the Guide to Professional Conduct (Chapter 8.03, commentary 6). Some expanded commentary on this issue might not be a bad idea. Matters may appear quite straightforward in principle but often the facts of an individual case are not. For example, in Koay Ai See confusion appears to have reigned in the week after the plaintiff’s solicitors’ error and, even allowing for a post-CJR entente cordiale, it is not entirely clear (without knowing more) how that error was supposed to have been quite so obvious to the defendant’s solicitors.

Most solicitors tend not to have extrasensory perception or, for that matter, the foresight of a clairvoyant. Of course, hindsight is a wonderful thing.