Cryptic disclosure: my first take on the Trojan Horse case

by Richard Moorhead (2017)

The Trojan Horse case (h/t Rich Greenhill for the link) is an uncomfortable reminder of how badly wrong lawyers can get disclosure obligations. It would be interesting to explore the reasons why that is and to wonder how much of this goes on unremarked upon (as nearly happened here). Whilst it can sometimes be difficult to ask a lawyer to step into their opponent’s shoes and decide which material may be relevant to, and disclosable to, their opponent’s case; that was not the case here.

Where we end up is – according to the decision of the Panel – a deliberate attempt to mislead their opponents and the Panel about the existence of obviously disclosable documents. Whether that failure was a knowing and reckless failure or a professional misjudgement (as the firm involved will almost inevitably seek to present it) remains to be seen. It will be crucial to the careers of at least some of the lawyers involved.

What it also indicates is an interesting attempt to use (or rely upon, depending on how deliberate one thinks this has been) institutional and professional boundaries to blur responsibility for disclosure problems. Counsel encouraged, the Panel and his opponents to think the real reason documents was not disclosed was a cock up in one part of Government, slightly but significantly removed from the client he represented.


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