This month's advice from the Society's Professional Practice team deals with emails sent in error to the other side
I received an email with an attachment late last night. I skim read the email, headed “strengths and weaknesses”, and clicked into the attachment. As I did so I started to question why the email had been sent to me, as the contents of the attachment – a letter from the other side’s expert assessing their evidence – was clearly not intended for me. I think the lawyer on the other side of the arbitration intended the attachment to go to his client, but emailed it to me instead, probably on account of us sharing the same first name. The letter from the expert makes admissions about a lack of evidence on the other side and highlights some weaknesses in their case. Can I share this information with my client, and what should I do about the fact that I have this email?
This is not a new question for the team and was considered in more detail by the Professional Practice Committee some years ago. The committee followed the approach of the court in an English case, Al-Fayed v Metropolitan Police Commissioner  EWCA Civ 780, where the court held that if privileged documents were mistakenly disclosed for inspection by one party to litigation in circumstances where it would not have been obvious to a reasonable solicitor that a mistake had been made, the disclosing party was not entitled to an injunction ordering the receiving party to return the documents. Moreover, the receiving party should be allowed to make proper use of the documents on the basis that they were no longer privileged and no public interest immunity attached to them.
Accordingly, if it is not obvious from the subject header that the email is not intended for the particular recipient, and the error only becomes apparent once the email has been opened and the contents read, then in those specific circumstances there is no duty to delete the email, return it, or to cease acting, and you are entitled to advise your own client of the contents. In the situation you describe, therefore, you are entitled to share this information with your client. If, however, you had received a request from the other party to return and delete the email before you had opened it, because the other party realised their error, that request should be complied with.
Ultimately, the risk here arises where you are sending emails in a tight time frame, under pressure, and when you have not taken time to check that you have entered the correct recipients, or have mistakenly “replied to all”. It is also key to be mindful of the danger of predictive text in your address book, where you might easily send an email to the wrong person.
Coral Riddell, Head of Professional Practice, The Law Society of Scotland