On 6 November the High Court ruled against Marque in a case involving 13 documents that it received from Norton Rose Fulbright (NRF).
Marque inadvertently received the documents from NRF in October 2011 as part of a package of around 60,000 documents in relation to a litigation matter that pits the one-office Sydney firm against the global behemoth.
Marque is acting for Armstrong Strategic Management and Marketing (Armstrong) in a long-running dispute against Expense Reductions Analyst Group (ERA), represented by NRF, after a consultancy agreement between the two companies broke down.
NRF argued the documents were the subject of client legal privilege, and they had been inadvertently disclosed contrary to its client’s instructions.
When NRF Sydney-based partner Stephen Klotz asked for the documents back, Marque, under the instructions of Bradley, refused to return them.
Part of Bradley’s reasoning was that by sending through the documents any privilege attaching to them had been waived.
The High Court, in a unanimous judgment from a partial bench of five justices, took a dim view of the behaviour of Marque and Bradley (pictured).
The High Court Cited Rule 31 of the Australian Solicitors’ Conduct Rules, which deal with the duty of a solicitor to return material where disclosure was inadvertent. In appealing to the better nature of lawyers, the High Court said such a rule should not be necessary in order to avoid unnecessary court costs and delays.
“It is an example of the professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice,” the High Court said.
The Law Council of Australia has adopted the Solicitors’ Conduct Rules, and the rules have been adopted in Queensland and South Australia.
While NSW, where Bradley is based, has not yet formally adopted them, the Law Society of NSW proposes that they be implemented.
Bradley declined an interview request from Lawyers Weekly.
NRF also refused to put forward a spokesperson when approached by Lawyers Weekly.
However, in a statement, the firm said if the shoe was on the other foot and it had inadvertently received privileged documents as a result of an undisputed mistake by an opponent, it would return them.
Gadens litigation partners Andrew Cameron and Fatmir Badali spoke to Lawyers Weekly about the legal issues in the case.
While not criticising the conduct of Bradley, both partners made the point that if a request was made to them to return documents inadvertently sent to them, they would do so.
“It should have been settled via a gentleman’s agreement,” said Badali, adding that he agreed with the High Court’s contention that such a rule should not be necessary.
Bradley is a former Sydney managing partner of Gadens; he left that firm to start Marque Lawyers five years ago.
He has often been critical in the media of large law firms since leaving Gadens.
Badali and Cameron, who are Melbourne-based, said they had no axe to grind with Bradley in speaking to Lawyers Weekly and they don’t know him personally.
Counting the cost
The High Court criticised the conduct of both parties in its judgment, with the matter also putting the discovery process under the spotlight.
NRF refuted the suggestions that the inadvertent disclosure of the documents pointed to flaws in its document review process and how it handles client information.
“We continually review our processes to ensure they are robust. The judgment acknowledges the risks associated with complex discovery faced by every firm managing large-scale litigation,” said NRF.
The High Court judgment made the point that the discovery process had become “burdensome”. It also castigated both firms for the protracted legal wrangling over this matter and essentially accused Marque and NRF of wasting its time.
“It has distracted them [both parties] from taking steps to a final hearing, encouraged the outlay of considerable expense and squandered the resources of the court.”
Badali and Cameron agreed that the High Court had ticked off both firms for straining court resources.
However, they said the judgment does not explicitly criticise NRF’s handling of the discovery process.
“It’s every lawyer’s worst nightmare,” said Badali when speaking about whether firms are worried they might inadvertently send documents to the other side in large-scale litigation matters.
Lawyers Weekly understands that the legal bill for Marque and NRF is substantial.
Marque engaged the services of Sydney silk Ian Pyke SC, while NRF’s legal team included Noel Hutley SC.
The High Court judgment over the disputed documents brings to an end one aspect of what has become a bitter and long-running litigation dispute.
A decision of the NSW Court of Appeal (COA) in December last year allowed Marque to keep all of the 13 documents.
An earlier decision of a single Justice of the NSW Supreme Court in May 2012 found that Marque had to return nine of the disputed documents, with Marque then successfully appealing against that decision.
Part of the COAs reasoning included that the list of documents sent to Marque would have been carefully checked and that the mistake was not obvious.
NRF subsequently appealed to the High Court, finally winning its bid to get the documents back more than two years after it had sent them to Marque.
The initial litigation between Armstrong and ERA has been in abeyance until this matter was resolved.
Lawyers Weekly understands that the 13 documents in question, while not overly sensitive, were important documents and contained information about communications between the ERA parties and its lawyers.
Correction: The initial story said that costs were awarded against Marque Lawyers. That is incorrect. The High Court ordered that the respondents should pay the appellants' costs of the appeal to the Court of Appeal, the applications for special leave to appeal and to cross-appeal and of this appeal.
Lawyers Weekly apologises for that error.