Litigation privilege: 6 key principles

Litigation privilege: 6 key principles

Each month we send our subscribers a monthly newsletter and last month we focused on the issue of privilege. We released our Practice Note on material sent in error or wrongfully used. Continuing this theme, we now consider litigation privilege and in doing so look at the law reports available on LexisLibrary, as well as the status the court attributes to the various reports.

The Court of Appeal (Civil Division) judgment in Rawlinson and Hunter Trustees SA & Ors v Akers & another [2014] All ER (D) 200 (Feb); [2014] EWCA Civ 136 is a useful reminder of some of the key principles in relation to litigation privilege, including:

  • where litigation has not been started at the time of the material communication, it must be 'reasonably in contemplation'. Although this does not mean litigation must be more than a 50% prospect, it must be more than a possibility (United States of America v Philip Morris & British American Tobacco  [2004] EWCA Civ 330 and Westminster International v Dornoch Ltd [2009] EWCA Civ 1323)
  • the burden of proving the dominant purpose test is on the party claiming the litigation privilege (West London Pipeline and Storage v Total UK [2008] 2 CL 259)
  • a mere claim in evidence that a document was for a particular purpose will not be decisive (Neilson v Laugharne  [1981] QB 736)
  • the court will look at 'purpose' from an objective point of view. It will look at all the relevant evidence, including of the subjective purpose
  • the evidence in support of any litigation privilege claim should be specific enough to show something of the analysis of the purpose of creating the material documents. Contemporaneous evidence should be put in evidence where available and appropriate (West London Pipeline and Storage v Total UK [2008] 2 CL 259)
  • litigation privilege is likely to be established, applying Three Rivers, only where:
    • litigation is in progress or is in contemplation,
    • the communications have been made for the sole or dominant purpose of conducting that litigation, and
    • the litigation is adversarial rather than investigative or inquisitorial

In Rawlinson, the Court of Appeal (Civil Division) dismissed the appeal that disclosure be prevented on the grounds of litigation privilege. In doing so it found the dominant purpose test had not been satisfied, namely, those documents had not come into being to obtain legal advice from a lawyer about actual or anticipated litigation proceedings. In addition to providing a summary of some of the key factors the court will take into account on such an application, it also considers the situation where there are dual or multiple purposes for the material documents.

Here the court was not satisfied on the dominant purpose test, where the first duty of the liquidators was to obtain information simply to establish what, if any assets or liabilities existed and what, if any, steps were available to the liquidators to collect on the assets or to reduce or discharge the liabilities (para 15). It pointed to the burden of proof being on the party asserting litigation privilege to satisfy it on the dominant purpose test. This is equally, perhaps especially, true where there was more than one purpose for the creation of the material document.

It also took into account the following non-determinative factors:

  • the delay between the creation of the material documents and the start of any proceedings (here, in some cases years). Although the court did not consider this 'determinative', it did find it 'points strongly against any suggestion that litigation was reasonably in prospect when this [document] was produced' (paras 19 / 59)
  • the delay (of nearly one year) in providing one of the material documents to counsel for the purpose of obtaining advice and formulating draft particulars of claim. Again, although the court did not consider this a conclusive factor, it did find it reduced the plausibility of an argument for dominant purpose (para 25)

This case is also a useful reminder of the limitations the appeal court will place on itself when determining such applications. Here the court said (para 20):

'Although we are in as good a position as was the judge to reach a conclusion on the question whether the dominant purpose test was in each case satisfied, I need hardly point out that this court will hesitate long before interfering with a careful assessment of this nature by a judge experienced in the relevant field, who has correctly directed himself as to the applicable legal principles'

Further guidance

With so many different sources for cases, do you know the status that the court attributes to them for use in court proceedings? For an understanding of the hierarchy of the available reports as well as dealing with ex tempore (oral) judgments and explaining neutral citations download our free Practice Note Law reports: Hierarchy and status of authorities [PDF].

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