Walker Morris

Why are you creating that pre-action document? More on litigation privilege (especially if you are a liquidator)

Since the Starbev decision, the Court of Appeal has had the opportunity to review litigation privilege again in the appeal of the decision in Tchenguiz v Director of the Serious Fraud Office (SFO). In dismissing the appeal, and finding that no litigation privilege attached to the five reports in question, the court emphasised that documents must meet the dominant purpose test if they are to be covered by litigation privilege.

What is litigation privilege? Just to recap, a document that has the benefit of litigation privilege is protected from an opponent’s inspection. To gain that benefit, a document must be a confidential communication between a lawyer and a third party or a client and a third party, created when litigation was reasonably contemplated or under way and made for the dominant purpose of obtaining advice or information about that litigation.

The facts behind the Tchenguiz litigation are quite complex. Suffice to say that two brothers (the Tchenguiz) required inspection of five reports held by third parties (the liquidators) to assist their claim against the SFO for damages…

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