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The scope of litigation privilege: an update

  • Ireland
  • General

12-12-2018

The UK Court of Appeal (CoA) has considered an expedited appeal that 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 WH Holding Ltd & Anor v E20 Stadium LLP [2018] EWCA Civ 2652.

The court considered whether privilege can be claimed over internal client communications that discussed a commercial proposal for settlement of the dispute. It was held that those communications were not covered by litigation privilege. The Court of Appeal held that the SFO v ENRC decision did not expand the scope of litigation privilege to documents which did not seek information or advice for the purpose of conducting litigation. It held that “conducting litigation” did not include internal discussions as to a settlement. To fall within litigation privilege, a communication must therefore be prepared for the dominant purpose of obtaining advice or information (eg for use as evidence) in relation to the conduct of litigation.

The CoA also examined the circumstances in which a Judge should inspect a document to test a challenged assertion of privilege. The Court has a broader discretion to inspect, though the power should be exercised cautiously.

Comment:

This decision, one of a number of recent decisions relating to the scope of litigation privilege, demonstrates once again why it is prudent to take legal advice at an early stage. Please contact our specialist solicitors should you require any assistance in this regard.

If you would like to discuss this matter further, please contact Matthew Howse (contact information below) or Conor McAleese (+44 28 9568 0826, conormcaleese@eversheds-sutherland.ie).

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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