Litigation privilege — not so easy to come by

By Miranda Whiteley

In recent years, the courts have been slow to allow a party to litigation to refuse to disclose a relevant contemporaneous report on the ground that it is protected by litigation privilege. The latest decision in Starbev GP Ltd v Interbrew Central European Holding BV is no exception. We look at the test for claiming litigation privilege and the ways in which organisations and their lawyers can safeguard a right to privilege where it may exist.

A document is protected by litigation privilege if it is made confidentially; between a lawyer and a client, a lawyer and a third party or a client and a third party; or for the dominant purpose of conducting or aiding the conduct of actual litigation or litigation that is reasonably in prospect.

This test was laid down by the House of Lords in Waugh v British Railways Board (1979). The court held that the due administration of justice strongly required an internal contemporaneous report into an accident, containing statements by witnesses on the spot, and almost certainly the best evidence as to the cause of the accident, to be disclosed by the British Railways Board. However, while it is desirable that all relevant evidence should be adduced to the court, there is also an important principle that a defendant must be able properly to prepare his case. The dominant purpose test was seen to strike a fair balance between these two competing policy concerns…

Click on the link below to read the rest of the Mills & Reeve briefing.

Sign in or Register to continue reading this article

Sign in

Register

It's quick, easy and free!

It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.

Register now

Why register to The Lawyer

 

Industry insight

In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.

 

Market intelligence

Identify the major players and business opportunities within a particular region through our series of free, special reports.

 

Email newsletters

Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.

More relevant to you

To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.

Analysis from The Lawyer

  • head1

    LPOver and out?

    The trend for unbundling legal work is advancing through the law firm ranks but there is still resistance in some quarters - namely in-house. We asked why

Overview

Fountain House
130 Fenchurch Street
London
EC3M 5DJ
UK

Turnover (£m): 79.50
No. of lawyers: 367