Our new legal privilege client tool

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

High Court orders disclosure of lawyer’s attendance note alluded to in claimant’s witness statement

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

High Court finds accountants’ investigation report not protected by litigation privilege and considers requirements for obtaining disclosure under the Disclosure Pilot

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

Court of Appeal confirms one joint privilege holder could not prevent disclosure of privileged material to assignee of other joint client

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

Court of Appeal confirms litigation privilege available even if third party misled as to purpose of information request

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

Court of Appeal confirms fraud exception to without prejudice (WP) rule extends to cases where a party wishes to rely on WP statements to rebut allegations that a settlement agreement is invalid

The Court of Appeal has upheld a High Court judgment which found that defendants could rely on WP statements made in a mediation position paper to rebut the claimants’ allegations that a settlement agreement apparently concluded should be set aside for fraud: Berkeley Square Holdings v Lancer Property Asset Management Ltd [2021] EWCA Civ 551. … Read more

Commercial litigation podcast series – Episode 6: General update

In this sixth episode of our series of commercial litigation update podcasts, we briefly outline the impact of Brexit on disputes and dispute resolution clauses, focusing on practical points for commercial parties. We also look at some developments on privilege and funding, as well as an update on witness evidence reform, and finally we consider … Read more