Whose ‘dominant purpose’ is relevant for asserting privilege? (Property Alliance Group (PAG) v RBS)

Article summary

Dispute Resolution analysis: The Chancery Division has allowed the inspection of transcripts of recordings of conversations between individuals where only the individual who made the secret recordings intended the purpose of the conversation to be to seek information to assist with bringing a claim. The other individuals had been invited to the meetings on a false basis and believed the purpose was to discuss potential business deals. In light of the deception, it could not be said that the ‘dominant purpose’ of the communications was for the conduct of contemplated litigation as, looked at objectively by the court, which it must be, there were clearly two divergent purposes for the conversations. Therefore, the conversations and any verbatim notes or transcripts did not attract privilege. Separately, the court emphasised the need to make an application under CPR 31.20 as early as possible for the use of privileged material which has been inadvertently disclosed by the other side. In...