Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of privilege application but require a further list of documents from the Claimants with supporting witness statement on the litigation privilege issue . . ‘
Judges:
Charles Hollander QC
Sitting as a Deputy Judge of the High Court
Citations:
[2022] EWHC 376 (Comm)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Starbev GP Ltd v Interbrew Central European Holding Bv ComC 18-Dec-2013
Challenge to assertion of litigation privilege.
Hamblen J said:
’11. The legal requirements of a claim to litigation privilege may be summarised as follows:
(1) The burden of proof is on the party claiming privilege to establish it . .
Cited – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 9-Jun-2008
Application for disclosure of defendant’s insurance arrangements. . .
Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
Cited – Westminster International Bv and Others v Dornoch Ltd and Others CA 4-Sep-2009
Appeal from the order of Cooke J on 30 April 2009 dismissing the application of the claimants for specific disclosure. The issue is whether the defendants are entitled to claim litigation privilege in respect of the documents in question. . .
Cited – Tchenguiz and Another v Serious Fraud Office and Others QBD 26-Jul-2013
Application for third party disclosure. . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Sotheby’s v Mark Weiss Ltd and Others CA 23-Nov-2020
Sothebys instructed an expert to consider whether a Franz Hals painting was forged; if the expert concluded that the it was, Sothebys would rescind the sale contract and it is was argued litigation would be in reasonable contemplation. Teare J held, . .
Cited – Director of the SFO v ENRC CA 2019
The SFO conducted an investigation into possible overseas bribery and corruption by ENRC. ENRC conducted an internal investigation using external solicitors under the 2009 SFO Self-Reporting Guidelines. At first instance Andrews J had held that the . .
Cited – WH Holding Ltd and Another v E20 Stadium Llp CA 30-Nov-2018
This expedited appeal raises issues as to: the scope of litigation privilege; the grounds upon which the court will be prepared to inspect documents where there is a challenge to the assertion of privilege; and the application of the ‘dominant . .
Cited – Sotheby’s v Mark Weiss Ltd and Others ComC 26-Nov-2018
Application for inspection of certain documents which have been disclosed by Sotheby’s, the Claimant, but in respect of which inspection has been withheld on the grounds of litigation privilege. . .
Cited – Axa Seguros, Sa De Cv v Allianz Insurance Plc (T/A Allianz Global Risks) and Others ComC 2-Mar-2011
Christopher Clarke J summarised the position as follows:
‘An affidavit which sets out a claim for privilege by stating the alleged purpose of the communication is not conclusive where it is appears from other evidence that the characterisation . .
Cited – Nea Carteria Maritime Co Ltd v Great Lakes Steam Ship Corporation 1981
A waiver of privilege carries with it an obligation to disclose associated documents in relation to the same issue or transaction. In other words, once a party has taken a voluntary decision to rely in court on privileged material, it is obliged to . .
Cited – PCP Capital Partners Llp, PCP International Finance Ltd v Barclays Bank Plc ComC 1-Jun-2020
Application for further disclosure
Waksman J said: ’48. As to the question of waiver itself, it is not easy to find a succinct and clear definition of when it arises, going beyond general statements to the effect, for example, that the party . .
Cited – Axa Seguros, Sa De Cv v Allianz Insurance Plc (T/A Allianz Global Risks) and Others ComC 2-Mar-2011
Christopher Clarke J summarised the position as follows:
‘An affidavit which sets out a claim for privilege by stating the alleged purpose of the communication is not conclusive where it is appears from other evidence that the characterisation . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Cited – MAC Hotels Ltd v Rider Levett Bucknall UK Ltd TCC 26-Feb-2010
Application by the defendants for disclosure and inspection of files of documents, which the claimant in the action says are protected by legal professional privilege or litigation privilege.
Judge Havelock-Allen QC said: ‘ When it comes to . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 16 April 2022; Ref: scu.672119
