Privilege denied — defendants’ attempts to withhold disclosure of documents on the grounds of litigation privilege rejected

In two recent cases, Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm) (Starbev) and Rawlinson and Hunter Trustees SA v Akers [2014] EWCA Civ 136 (R&H), it has been held that professionally prepared correspondence and reports were not protected by litigation privilege.

In this note, Macfarlanes briefly considers these cases, in the context of the requirements to be met for a successful claim to litigation privilege.

In Starbev, it was held that the defendant had failed to demonstrate that certain correspondence, created during investigations carried out by a bank (B) and a firm of accountants (A), on behalf of the defendant, Interbrew, were protected by litigation privilege. The court found that litigation had not been reasonably anticipated at the time of the correspondence and, therefore, had not been the dominant purpose behind its creation…

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