In The New Lottery Company Ltd & Anor v The Gambling Commission [2025] EWHC 1058 (TCC), the High Court has handed down an important judgment on the loss of legal privilege (“LPP”) arising from the inadvertent disclosure of documents during disclosure in litigation.
The judgment is the first occasion in which the High Court has considered the legal principles relating to the inadvertent disclosure of LPP material and the doctrine of ‘obvious mistake’ (which will prevent privilege being lost) in the context of a modern, ‘heavy’, electronic disclosure and review exercise.
The proceedings concern the New Lottery Company Limited’s (“TNLC”) legal challenges to the award of the fourth UK national lottery licence.
During the course of undertaking a substantial electronic disclosure exercise (which led to the disclosure of more than 50,000 relevant documents), the defendant in the proceedings (the Gambling Commission (“the GC”)) experienced systemic problems in its document review process which led to the inadvertent disclosure of more than 4000 legally privileged documents.
Upon discovering the errors, the GC wrote to TNLC seeking confirmation that the relevant documents would be destroyed or returned. In relation to a sub-set of the affected material, comprising c. 120 documents, TNLC refused to do so, asserting (inter alia) that the documents had already been reviewed by clients, that any privilege had been lost and that it wished to refer to the relevant documents to amend its pleadings. The GC disagreed, arguing that the inadvertent disclosure was an ‘obvious mistake’ and that accordingly TNLC was not entitled to use the affected documents.
Jefford J undertook a detailed analysis of the existing authorities governing the loss of privilege because of the inadvertent disclosure of LPP material in the course of litigation. Importantly, the judgment provides detailed guidance on how those legal principles will fall to be applied in the context of a substantial, ‘heavy’, electronic disclosure exercise that involves multiple levels of document review by lawyers with different levels of experience and expertise.
Joseph Barrett KC of 11KBW appeared successfully on behalf of the Interested Party, Allwyn, instructed by Quinn Emanuel LLP A copy of the High Court’s judgment can be found here:
