What’s mine is mine and what’s yours is yours.

No, this isn’t about family law – in fact, if it was, this statement would be wrong.

In family financial proceedings, what’s yours is ours, and what’s mine is ours – and either side’s ability to argue that an asset falls outside of the family pot can be quite difficult.  Which is a good reason to have a pre or post nup agreement, if you have to get married at all!

No, what I wanted to talk about, is what happens when you accidentally send confidential or privileged documents to another party?

Let’s say, for example, that you’re involved in a disclosure exercise with the other side, and they ask to see copies of all of your disclosable documents.  You send them everything that they ask for, but you accidentally include some documents that are not disclosable.  Perhaps you include solicitor client correspondence, or correspondence relating to a completely different case.

Having handed the documents over, albeit in error, who do those documents belong to?

Well, they still belong to you, in much the same way as if you’d accidentally left your phone in a restaurant.  Ownership of your phone doesn’t automatically pass to the restaurant, and ownership of your papers doesn’t automatically pass to the other side.

Your average litigation solicitor or professional opponent will know this, and should simply hand the documents back to you, or allow you to retrieve them, along with giving an undertaking that they didn’t read any of them and haven’t kept copies of them or shared them with anyone else.

But what do you do when your opponent refuses to cooperate.

Perhaps they believe that you meant to disclose the documents and now have simply changed your mind.

Or perhaps you’re up against a litigant in person who doesn’t know that they’re not entitled to keep the documents.

Maybe you are the one in receipt of the documents and you’re hoping you can keep them, if only to be a thorn in your opponent’s side, or at least give them a sleepless night or two.

In that scenario, it may be necessary for the owner of the documents to make an application to Court for an order that they be returned, and any copies deleted, with a warning to your opponent that there will be serious consequences if they don’t comply.

If you are the one that has received the documents, you are best not to read, copy or distribute them until the matter has been resolved by the court, because if you misuse them, you could prejudice your position.

Obviously the better thing to do is not to make mistakes with the documents in the first place, but as we all know, accidents happen.

So make sure you know what to do if something goes wrong (whichever side you’re on) or make sure you know what my number is!

Kleyman & Co Solicitors.  The full service law firm.  Helping you with legal slips and trips.