Tag Archives: Litigation privilege

Article published on common interest privilege

Common interest privilege allows communications or documents that are already privileged to be shared with others who have a common interest in their subject matter without losing privilege. The practical significance of this concept is greatly reduced as a result … Continue reading

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No litigation privilege where witnesses were deceived as to true purpose of meetings

The High Court has rejected a claimant's claim to assert litigation privilege over secret recordings of meetings with potential witnesses (who were former employees of the defendant), because the witnesses were deceived into believing that the meetings were to discuss business opportunities rather than evidence … Continue reading

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Article published on maximising privilege protection for internal investigations under US and English law

When a company conducts an internal investigation in respect of a potential regulatory issue, it will wish to maximise the extent to which materials produced in connection with the investigation are protected by privilege. If privilege is protected from the outset, the company … Continue reading

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High Court applies fraud/iniquity exception to displace litigation privilege

The High Court has held that certain communications between a client and lawyers during the course of proceedings were not protected by litigation privilege. The fraud/iniquity exception applied as there was a strong prima facie case that advice was being … Continue reading

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Article published on strict test for litigation privilege

To gain the protection of litigation privilege, a party must establish that when a document was created: (i) litigation was in reasonable prospect; and (ii) the document was prepared for the dominant purpose of that litigation. Recent decisions illustrate how … Continue reading

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Court of Appeal finds waiver where privileged document provided for inspection and mistake not obvious

The Court of Appeal has granted claimants permission to use privileged documents which had been disclosed inadvertently by the defendant (the SFO) in the course of litigation, reversing the decision of the Commercial Court: Rawlinson and Hunter Trustees SA v SFO … Continue reading

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Court of Appeal decision underlines need for clear evidence of dominant purpose in maintaining claim to litigation privilege

The Court of Appeal has upheld a decision rejecting a claim to litigation privilege for reports obtained by liquidators, as the liquidators had failed to establish that the dominant purpose of the reports was for use in litigation: Rawlinson and … Continue reading

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Commercial Court rejects claim to litigation privilege

In the latest decision illustrating the court’s strict approach when applying the test for litigation privilege, the Commercial Court has rejected a defendant’s claim to privilege over reports prepared by third parties (a bank and a firm of accountants) regarding a potential entitlement to … Continue reading

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High Court decision underlines strict dominant purpose test for litigation privilege

A recent High Court decision demonstrates the court’s strict approach in analysing the purpose for which a report was prepared in order to determine whether a claim for litigation privilege is available: Tchenguiz & anor v Rawlinson and Hunter Trustees SA & … Continue reading

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Litigation privilege: applying the test

In Axa Seguros S.A. de C.V. v Allianz Insurance plc and others [2011] EWHC 268 (Comm), the High Court held that engineers’ reports produced for the reinsurers were not subject to litigation privilege. Although litigation was reasonably in prospect, the … Continue reading

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