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In this 10th episode of our series of commercial litigation update podcasts, we give an update on recent developments relating to privilege, the disclosure pilot, representative actions, and two recent Supreme Court decisions on liquidated damages and lawful act economic duress respectively. This episode is hosted by Anna Pertoldi, a partner in our litigation team, … Read more
The High Court has held that the protection attached to a chain of emails marked “without prejudice” extended to a subsequent email even though it was not so labelled. The last email plainly followed on from the prior emails seeking to resolve a dispute and there had been no clear indication that the sender wished … Read more
Herbert Smith Freehills has developed a new web-based app to help in-house counsel quickly navigate the complexities in determining which documents are likely to be privileged, or not. CLICK HERE TO LAUNCH THE TOOL The “English Law Legal Privilege” web app allows clients to quickly access the information they need both on their mobile phones … Read more
The High Court has ordered a claimant to disclose its lawyer’s attendance note (or notes) of discussions with one of the defendant’s employees, on the basis that the notes were “impliedly mentioned” in the claimant’s witness statement and the claimant had waived privilege: Scipharm SARL v Moorfields Eye Hospital Foundation Trust [2021] EWHC 2079 (Comm). … Read more
The High Court has granted an application by a claimant state for orders that the defendant bank disclose an accounting firm’s investigation report (and associated documents) originally withheld from disclosure on the grounds of litigation privilege, as well as to disclose certain categories of documents on a Model E or “train of enquiry” basis and … Read more
The High Court has held that the seller of certain companies could assert privilege against the buyer in respect of emails and documents in employees’ email accounts, despite the buyer having received wholesale access to those accounts as a result of the underlying transaction: ConocoPhillips Co v Chrysaor E&P Ltd [2021] 3 WLUK 524. The … Read more
The Court of Appeal has confirmed that, where one client to a joint retainer had assigned to a third party its claims against the jointly retained solicitors, the assignee (and its solicitors) were entitled to access the joint retainer file in order to pursue those claims, regardless of the other joint privilege holder’s objections. It … Read more
The Court of Appeal has upheld a decision that a pre-action letter sent by the claimant to a third party, and the third party’s response, were subject to litigation privilege as the claimant’s true purpose in instigating the correspondence was to obtain information for the present proceedings. The dominant purpose test was therefore satisfied, and … Read more
In a recent decision, the High Court has found that a pre-action letter sent by the claimant to a third party, and the third party’s response, were subject to litigation privilege, overturning the decision of the Master who had found that privilege did not apply. The court was satisfied that the true purpose of the … Read more
