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.