In the recent decision in Pickett v Balkind  EWHC 2226 (TCC), the High Court considered the circumstances in which injunctive relief can be obtained following the mistaken disclosure of privileged documents. The decision provides a useful restatement of the legal principles underpinning privilege in court proceedings.
The dispute in this case concerned a claim for damages arising out of the subsidence of the Claimant's residential property, which had allegedly been caused by the roots of the Defendant's neighbouring oak tree. Following a costs and case management conference, the presiding judge made a direction giving both parties permission to appoint experts in the fields of arboriculture and structural engineering. Joint statements of the parties' experts were filed in April 2022, with the trial originally scheduled to take place in July 2022.
In May 2022, the Claimant's solicitor informed the Defendant's solicitor that its expert structural engineer, Mr Cutting, would be unable to give evidence at the trial as listed because he would be undergoing surgery. The Claimant issued a draft application for adjournment, accompanied by a draft witness statement from the Claimant's solicitor. The draft witness statement referred to a letter from Mr Cutting to the Claimant's solicitor; the letter was exhibited to the statement but had, in error, been left unredacted. In addition to explaining his need to undergo eye surgery, Mr Cutting's letter contained information which revealed a potential breach of the expert independence principle under CPR rule 35.3. The unredacted letter was exhibited to the Claimant's application notice filed at court on 1 June 2022.
The parties' applications
On 14 June 2022, the Claimant issued an application notice seeking an injunction to restrain the Defendant from using the 1 June witness statement and Mr Cutting's unredacted letter, on the basis that the letter's inclusion had been an "inadvertent and obvious" mistake. The Claimant's solicitor also explained that Mr Cutting's reference to their "comments" (which implied a breach of CPR rule 35.3) was instead a reference to an "aide memoire" which the solicitor had prepared for him.
The Claimant issued a further application notice seeking permission to put in evidence a supplemental expert report from its expert arboriculturist. This witness statement would replace the arboriculturist's original statement and had the effect of removing all references to a report by "Prior Associates" (Mr Cutting's firm), which had not been disclosed to the Defendant.