The High Court has confirmed that the Disclosure Pilot operating in the Business and Property Courts since 1 January 2019 applies to all proceedings currently on foot in those courts (apart from those specifically excluded), regardless of whether orders for disclosure were made prior to that date. Accordingly, any applications for further orders regarding disclosure … Read more
The High Court has held that correspondence marked “without prejudice save as to costs” and which described the conduct of prior “without prejudice” (“WP”) negotiations (including a mediation and subsequent discussions) was admissible in an application for costs against the claimant’s lawyers: Willers v Joyce & Ors [2019] EWHC 937 (Ch). The court accepted that … Read more
On Tuesday 19 March (12.30 – 1.30pm GMT), Julian Copeman, Anna Pertoldi and Maura McIntosh will deliver a webinar for Herbert Smith Freehills clients and contacts looking at developments in the English law of privilege over the past six months. In that time, the courts have reinforced some old problems, such as the narrow interpretation … Read more
The High Court has held that the content of “without prejudice” (“WP”) communications between the parties to the proceedings was inadmissible, though the fact of the WP negotiations could be referred to. The counterparty to the WP communications would be prejudiced by admission of the communications, and it had neither deployed the content of the … Read more
A recent High Court decision demonstrates that, whilst confidentiality is a prerequisite to a claim for privilege, information will not cease to be confidential unless it is in fact known to a “substantial number of people”: Winstone v MGN Ltd [2019] EWHC 265 (Ch). In the present case, the court found that the quality of confidentiality had … Read more
The High Court has rejected an application for disclosure of documents containing the underlying instructions to a law firm acting for a party funding a transaction, in circumstances where the law firm provided a confirmation to the seller as to the nature of its irrevocable instructions regarding escrow monies: Raiffeisen Bank International AG v Asia … Read more
The recent Court of Appeal decision in WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 (outlined here) found that litigation privilege applies only to documents created for the dominant purpose of obtaining advice or information/evidence in relation to litigation, and not the conduct of litigation more broadly. As a result, the privilege did not … Read more
The Court of Appeal has held that emails between a company’s Board members which had been prepared to discuss a commercial proposal for the settlement of a dispute were not covered by litigation privilege: WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652. The court found that, to fall within litigation privilege, a … Read more
