Law Report: Using reports disclosed in error: Pizzey v Ford Motor Co Ltd - Court of Appeal (Lord Justice Nourse, Lord Justice Stuart-Smith and Lord Justice Mann), 26 February 1993

The defendants in a personal injury case were entitled to use confidential medical reports, unfavourable to the plaintiff's case, which had inadvertently been disclosed by the plaintiff's solicitors during pre-trial discovery, since the defendants' solicitor reasonably believed that the privilege attaching to the reports had been waived.

The Court of Appeal dismissed an appeal by the plaintiff, Albert Pizzey, against the refusal by Judge Goldstein, sitting in Bow County Court on 15 July 1992, to restrain the defendants, Ford Motor Co Ltd, from using at the trial two privileged documents inadvertently disclosed to them by the plaintiff's solicitors pursuant to an order for discovery.

The plaintiff's action was for damages for personal injuries sustained while working for the defendants.

Robert P Glancy (Robin Thompson & Partners, Ilford) for the plaintiff; Alan H Jeffreys (Wyeth & Co, Dartford) for the defendants. (Neither counsel appeared in the county court.)

LORD JUSTICE MANN said the court had power to intervene to protect the mistaken party where, on inspection, the other party realised that they had been permitted to see a document only by reason of an obvious mistake: see Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (1987) 1 WLR 1027 at 1045, per Slade LJ.

But the defendants' solicitor swore in her affidavit that she genuinely believed the reports had been disclosed pursuant to an order for discovery made in the case.

It was of utmost importance that a litigant should be able to rely on the discovery of his adversary. Exceptions to that ability must not extend beyond fraud and mistake.

Cases of mistake were stringently confined to those which were obvious, ie evident to the recipient of the document.

The onus was on the plaintiff to satisfy the court that a solicitor receiving the reports ought to have realised that there had been a mistake. The documents had the appearance of the privilege they actually enjoyed.

But though a hypothetical reasonable solicitor might have been surprised to receive the documents, the court could not be satisfied on the probabilities that they would realise that privilege had not been waived.

LORD JUSTICE NOURSE and LORD JUSTICE STUART- SMITH agreed.

Paul Magrath, Barrister