If you’re not embroiled in litigation it would be easy to dismiss litigation privilege as something not worth knowing but, sadly, we never know what life’s going to throw at us next and if you’re ever embroiled in legal action with a behemoth of a company it’ll be useful to know which documents you are, and are not allowed to see. (Spoiler – it’s more than you think)
A (very brief) Primer on Privilege
Before going to court to settle a dispute each party is required to list all documents relevant to their case and allow their opponent to inspect them. This even includes documents that might help the other side’s claim and hinder their own.
It’s not a stretch to imagine that a lot of people would not want their opponent getting a good look at every single detail of their case: enter ‘privilege’ as a form of protection to ensure that some documents remain private.
One form of privilege is litigation privilege. In short, it can protect confidential communications between a client (that could be you) and a legal advisor (that could be us) from being inspected.
What does this have to do with West Ham?
In 2018 WH Holding Ltd sued the landlord of West Ham United’s stadium: they were having a dispute over the number of seats the club was contractually entitled to use. The landlord, E20 Stadium LLP, had disclosed some of the emails between members of their board and the shareholders discussing the litigation but claimed that these emails were protected by litigation privilege and couldn’t be inspected.
West Ham challenged this application of litigation privilege. In the first instance the court found that as the communications were created in an attempt to settle the ongoing litigation E20 Stadium LLP did have the right to restrict the documents.
The Hammers escalated this to the Court of Appeal, and it found that it was not enough for a party to create documents for the purpose of discussing a settlement and bringing litigation to a close, but the documents must be seeking legal advice or information for the purpose of conducting that litigation – only correspondence with a lawyer will do.
E20 Stadium Limited’s mistake came from a misreading of Lord Carswell’s definition of litigation privilege in Three Rivers (No. 6)[i] and the belief that ‘the communications must have been made for the sole or dominant purpose of conducting that litigation’ was widening the scope of litigation privilege from communications between parties and their legal representatives – but this was not the case.
E20 also claimed that in any event all their internal emails were privileged as they were internal communications – but the court saw fit to overturn a precedent from 1884[ii] to update the law and allow WH Holding Ltd the right to inspect those emails.
What does this mean moving forwards?
It means that members and shareholders of a company will have to be a more careful as to how they communicate with each other and what information is contained within those communications. It’s a cautionary tale to those discussing attempts to settle proceedings without legal advice present in the text (even if they have sought legal advice). One way to work around this could be to start incorporating legal advice into all internal communications that seek to settle or stop litigation in order to satisfy this test.
Will West Ham United win the Premier League?
It’s unlikely. Sorry.
If you’re embroiled in litigation or think that you might be in the near future or simply want to know more about litigation privilege, then contact our Litigation Team and we’ll see how we can help you.
[i] 2006 UKHL 48
[ii] Mayor and Corporation of Bristol Ltd v Cox 2018 EWCA Civ 2006