Litigation privilege—deception as to purpose of correspondence does not prevent claim to privilege (Ahuja Investments v Victorygame)

Table of contents

• What are the practical implications of this case?
• What was the background?
• What did the court decide?
• Case details

Article summary

Dispute Resolution analysis: In the context of ongoing litigation between the parties, the question on appeal was whether a letter of claim sent under the pre-action protocol for professional negligence to Ahuja’s conveyancing solicitors, Stradbrooks, as well as the response from Stradbrooks’ insurers, were within the scope of litigation privilege. The High Court, on appeal from the order of Master Pester, held that the dominant purpose of the correspondence was to elicit information to be used in the ongoing present proceedings and even though there was an element of deception as to the purpose of the correspondence, there was no principled reason why the protection of privilege should not be available in relation to that information. The decision also stresses that the privilege is that of the litigant, not the third party. Written by Natalie Todd, partner at PCB Byrne LLP.