Your Lawyer's Advice Email Was Disclosed in a DIFC Case

If a DIFC privileged email was disclosed by mistake, raise the issue promptly and seek appropriate protection before further use. RDC 28.67 says that a party who has inspected an inadvertently disclosed privileged document may use it or its contents only with the court's permission. Whether the document is privileged and whether disclosure was genuinely inadvertent are separate questions.

Preserve the original document and the disclosure trail. Do not delete evidence, circulate the advice more widely or assume that an email demanding its return resolves the dispute. The immediate task is to identify what was shared, how it happened and what use is proposed.

What should you do about a DIFC privileged email disclosed by mistake?

Immediate task	What to record	What to avoid
Identify the material	Document number, version, attachment and bundle location	Forwarding the whole advice chain to unnecessary recipients
Preserve the trail	Production instructions, cover email and review history	Deleting the original or changing its metadata
Explain the concern	Privilege basis and why inspection was inadvertent	Assuming a confidential label proves both points
Contain proposed use	Whether a witness, expert or hearing bundle already relies on it	Assuming an objection automatically removes every copy
Resolve the dispute	Agreed safeguards or the order sought from the court	Taking disputed permission into your own hands

The table is a practical containment aid, not a substitute for a privilege assessment. In a mixed email chain, different messages or attachments may need separate treatment. Identify the precise material over which protection is claimed rather than describing an entire folder as privileged because it contains a lawyer's name.

Tell the litigation team where the document has gone. Was it merely included in an electronic production, specifically selected for a trial bundle, quoted in a witness statement or read at a hearing? The stage affects what needs to be addressed. A proposed order should respond to actual use, not just the first transmission.

If the hearing is close, explain that urgency with dates and bundle references. The general case-management powers in RDC 4.2 allow the court to manage the proceedings, but the precise relief and application procedure must be chosen for the situation. An urgent problem still requires an accurate account.

First establish that the document is privileged

Privilege cannot be assumed from a document's appearance. RDC 28.28 recognises privilege under the legal or ethical rules the court determines applicable as a ground for excluding production. The content, purpose, participants and applicable privilege rule must be examined.

A commercial email copied to a lawyer and a communication conveying legal advice do not necessarily raise the same analysis. An attached pre-existing transaction document may require its own assessment. This guide does not attempt to decide privilege for every category of in-house communication, investigation report or cross-border advice.

Prepare a description that supports the claim without needlessly repeating the protected advice. Record who sent it, who received it, the relevant relationship and the asserted legal basis. Ask your representative how much detail the other party and court need to evaluate the claim without defeating the protection being sought.

RDC 28.29 requires a person claiming a right or duty to withhold a document or part to state the claim and its grounds in writing. RDC 28.30 allows the court to decide whether it should be upheld. Those provisions help explain why a bare instruction to remove something marked confidential may not settle the issue.

Keep the two questions in separate columns in your working note. One concerns the original privilege. The other concerns what happened through disclosure or inspection. Strong evidence on the first does not necessarily answer the second.

Reconstruct how the email entered the production

The disclosure history should show what was selected, reviewed, sent and said about it. That sequence may be decisive when one party later says the document was included accidentally.

Collect the production list, review coding, transmission email, instructions to add documents to the trial bundle and any response. If different reviewers handled separate stages, identify them. Do not write a single statement saying "clerical error" before checking whether someone deliberately selected the document because it was thought helpful.

Three factual questions deserve individual answers.

These are factual preparation questions. Do not coach a reviewer to adopt a more favourable description. If the document was intentionally sent but its legal effect was misunderstood, say what happened. A truthful account may lead to a different legal argument from the one initially contemplated.

Preserve communications showing the recipient's position too. It may have asked whether the document was intended for inclusion, or the sender may have specifically insisted that it appear in the hearing bundle. Those exchanges are more informative than a later statement of regret.

What the Access Group decision actually decided

In Access Group and Proex v BLS International, CFI 091/2023, 12 November 2025, paragraphs 62 to 65, the disputed document was an internal email summarising lawyers' advice. The parties did not dispute that the advice was privileged.

The court nevertheless allowed its use. The document had been disclosed shortly before trial and specifically proposed for inclusion in the supplementary bundle. The judge found a deliberate disclosure, not an obvious mistake. The surrounding correspondence indicated that the documents had been considered and selected as necessary for a complete trial record.

The judge also concluded that, even if there had been a mistake, it would not have been obvious to the recipient in the circumstances. The recipient could reasonably understand the selection as a deliberate step intended to help the disclosing party's case. Privilege in the underlying advice did not by itself undo that selection.

Key takeaway. Proving that an email contains legal advice is only the beginning. Preserve evidence about the disclosure decision and what the other side was told about it.

The decision's discussion included whether a mistake was or should have been obvious and, where that threshold arose, whether restraining use would be just and equitable. It identified possible considerations such as delay and wrongdoing, without presenting an exhaustive list. In the actual case, the court did not reach that further balance because it rejected the necessary mistake premise.

This was one ruling within a larger commercial trial. It should not be retold as a case in which all accidentally disclosed advice lost protection. The factual finding was that this disclosure was deliberate, with an alternative conclusion about what the recipient would have understood.

How does the permission rule affect the receiving party?

RDC 28.67 supplies the express rule where inspection of a privileged document has been inadvertently allowed: the inspecting party needs the court's permission to use the document or its contents. It should not assume that physical possession answers the question.

If you receive an objection, identify the material and proposed use before replying. The objection may be justified, disputed or incomplete. Ask your representatives to assess the privilege claim and the circumstances rather than copying the advice into the next witness statement to gain an advantage before the issue is determined.

Where inadvertence is contested, Access Group illustrates why the evidence matters. A deliberate disclosure finding is different from an undisputed accident for which permission has not been sought. Do not convert the court's conclusion on that particular correspondence into a general right to use anything delivered in a bundle.

Permission to use information in this case is also distinct from permission to distribute it elsewhere. RDC 28.64 generally limits the use of produced documents to the proceedings, subject to its exceptions. RDC 28.65 permits restrictions even following relevant public-hearing use. Check both the privilege decision and any broader confidentiality or use order.

If an expert or witness has already read the document, tell your representatives. Concealing that fact can make a proposed safeguard unrealistic. The court needs an accurate picture of what has happened before it can decide the next step.

Seek a precise remedy instead of a general demand to forget

A practical application identifies the document, the disputed use and the protection sought. The correct relief may involve the trial bundle, future reliance or another measure appropriate to the proceedings. Do not assume that the court can or will make every requested restriction merely because the sender is concerned.

1. Identify the exact document and the grounds on which privilege is asserted.
2. Set out the disclosure and objection chronology with the supporting communications.
3. Explain whether the alleged mistake was apparent to the recipient and why.
4. Describe any use already made by lawyers, witnesses, experts or at a hearing.
5. State the permission or protective order sought and address the other party's response.
6. Arrange how the resulting order will be reflected in bundles, evidence and access arrangements.

A proposal to remove one document from a working bundle should identify how the replacement bundle will be labelled and how references will be corrected. That is practical document management, not permission to destroy the original record. Retain an accurate history of the versions and comply with the court's directions about treatment.

Do not overlook extracts. The email may be repeated in a chronology, an expert's instructions or a witness exhibit. An application confined to the original file can miss the actual proposed reliance. At the same time, avoid circulating every repetition to people who do not need to see the advice.

The recipient should address the same questions honestly. If it seeks permission, identify the purpose and issues said to justify use rather than relying on a broad assertion that anything relevant belongs in evidence.

Reduce the risk of another disputed disclosure

After the immediate problem, review the path by which documents reach the other party. In Access Group, the court examined a deliberate, limited selection for a trial bundle. A final bundle review therefore matters even where the earlier bulk production exercise was carefully organised.

Use a documented escalation process for communications that appear to contain legal advice. The person assembling a hearing bundle may not be the person qualified to assess privilege. A clear query to the responsible lawyer is more useful than treating a confidentiality banner as a complete answer.

These practical controls address different points in that process.

Common mistake. Calling an intentional disclosure accidental after its contents become inconvenient may not restore protection. Check the contemporaneous selection and transmission evidence before making that assertion.

The useful end point is a recorded decision about the identified material, followed by consistent treatment across the case papers. Sources checked on 29 September 2026. Privilege and procedural directions must be assessed on the actual communications and current case record.

Frequently Asked Questions

Can the opponent use a privileged email accidentally disclosed? RDC 28.67 requires court permission where inspection of a privileged document was inadvertently allowed.

Does copying a lawyer make every email privileged? Do not assume so. The applicable privilege rule, content, purpose and participants need a separate assessment.

Should I delete the mistakenly disclosed email? Do not destroy the source record. Preserve it and obtain advice on access restrictions, use and any court directions.

Is a demand to return the email enough? It raises the concern but may not resolve a disputed privilege or disclosure question. Appropriate agreement or a court decision may be needed.

Why was the advice email usable in Access Group? The judge found deliberate disclosure and, alternatively, that any mistake would not have been obvious to the recipient in those circumstances.

What evidence should establish the mistake? Review the selection history, production instructions, cover correspondence, bundle requests and timing of the objection.

Can I share the opponent's disclosed email outside the case? Do not assume that permission to use it in proceedings permits wider distribution. Check RDC 28.64, 28.65 and all relevant orders.

What if an expert has already relied on the advice? Tell your representatives promptly and identify the report or instruction involved so any application addresses the actual use.

This article is general information and does not constitute legal advice. Consult a qualified advocate about the communications, privilege claim and urgent steps appropriate to your case.

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Our DIFC Court disputes page covers jurisdiction, service, default judgment and setting aside, immediate judgment, disclosure, costs and appeals under the Rules of the DIFC Courts.

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