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 privilege. There is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court. The report undoubtedly contained material collected by or on behalf of the Board for the use of their solicitors in anticipated litigation, but because it could not be shown that this was its dominant purpose the document did not attract litigation privilege.
Legal advice privilege has to be distinguished from litigation privilege. The need to make that distinction was sometimes overlooked: ‘It is for the party refusing disclosure to establish his right to refuse. It may well be that in some cases where that right has in the past been upheld the courts have failed to keep clear the distinction between (a) communications between client and legal adviser, and (b) communications between the client and third parties, made (as the Law Reform Committee put it) ‘for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”
A ‘dominant purpose’ test was the best method of resolving the competing principles that on the one hand there should be full disclosure of relevant material in litigation, and on the other, there must be effective maintenance of legal professional privilege.
Lord Simon, Lord Edmund Davies, Lord Wilberforce
 AC 521,  UKHL 2,  3 WLR 150,  2 All ER 1169,  UKHL TC – 53 – 185
England and Wales
Approved – Re Highgrade Traders CA 1984
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect. . .
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 – 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 – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Wright v Sullivan CA 27-May-2005
The claimant had appointed a clinical case manager. She appealed an order requiring the case manager to report also to the court.
Held: The case manager’s duties were purely to the claimant, and an order requiring that manager to report also . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Distinguished – Sugar v The British Broadcasting Commission and Another (No 2) CA 23-Jun-2010
The respondent had had prepared a report as to the balance of its reporting of the Israeli-Palestinian conflict. Earlier proceedings had established that the purposes of the holding of the reporting included jurnalism. The claimant now appealed . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
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 . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Evidence
Updated: 23 March 2022; Ref: scu.188693