The case raises the important issue of ‘litigation privilege’. Documents are covered by litigation privilege (and therefore the party does not have to disclose them) if:
- The communication was confidential
- The communication was between the client or lawyer on the one hand and a third party on the other hand
- The communication was made after proceedings were commenced or contemplated
- The communication was created for the dominant purpose of:
- Seeking or giving advice in relation to such proceedings
- Obtaining evidence to be used in such proceedings
- Obtaining information leading to obtaining evidence to be used in such proceedings
The UK’s High Court said it would refuse to allow the use of a mistakenly disclosed privileged document either:
- Where the document was obtained by fraud or
- Where the document was made available as a result of an "obvious mistake"
What Was the Background to This Particular Case?
A fraud investigation had been started by the Serious Fraud Office (SFO), and the majority of claims were settled. In this case, the claimant (as trustee of a discretionary trust) applied for the court’s permission to use certain documents that had been disclosed, including various extracts of witness statements served in the main proceedings in a pending appeal in separate proceedings in Guernsey.
However, some of this material had been the subject of earlier applications wherein the court had refused to allow the use of documents generated by the SFO during the criminal investigation. An application was therefore made for a declaration that some of the documents were already in the public domain -- and therefore not prohibited against collateral use.
The SFO cross-applied for an order re-imposing protection in relation to those documents, one of which was a briefing note prepared specifically for the SFO. There was no argument this note was privileged, but the issue was whether it would have been obvious to a reasonable solicitor that it had been mistakenly disclosed. The court decided that any privilege that existed in the documents had been waived when they were inspected by the claimants, because it was not obvious a mistake had been made.
The Court upheld its earlier decision that the documents should all be disclosed, dismissing the appeal which was based on the argument that disclosure should be prevented on the grounds of litigation privilege.
Dominant Purpose Test
The Court found the ‘dominant purpose’ test had not been satisfied: namely, those documents had not come into being to obtain legal advice from a lawyer about actual or anticipated litigation proceedings. It considered in detail all the documents that were the subject of the litigation and considered their specific purpose in relation to the ‘dominant purpose’ test.
What complicated matters somewhat was that the documents had a dual purpose (i.e. they had been prepared for two separate matters.) The court emphasised that it was for the party concerned to show that the two purposes were not independent of each other and that the dominant purpose was for use in the conduct of litigation.
What Does This Mean?
Where a party seeks to rely on litigation privilege, it is for that party to provide all relevant evidence and to clearly set out its case with care. The evidence put forward by that party must be sufficiently specific to show to some extent the purposes for which the relevant document was created, referring to such contemporary material as is possible without disclosing the privileged material itself. Critically, the document must have been created for the sole or main purpose of litigation, whether actual or contemplated.
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1 Rawlinson and Hunter Trustees SA (in its capacity as trustee of the Tchenguiz Discretionary Trust) v Director of the Serious Fraud Office and others EWHC 266 (Comm)