Litigation privilege allows parties to explore potential proceedings, safe in the knowledge that documents created in the process will never have to be disclosed. However, in White & Ors v Uber London Ltd & Ors the Commercial Court provided an important reminder that documents generated during the process of securing litigation funding will not attract litigation privilege.
Background
The underlying dispute is an unlawful means conspiracy claim brought by London black cab drivers and two private hire companies against Uber. The claimants allege that Uber fraudulently misrepresented its operating systems to obtain a private hire operator licence in London and that, but for that conduct, Uber would not have competed with them between mid-2012 and March 2018. Uber denies the claims in their entirety.
The claims were issued in 2024 after the primary six-year limitation period had expired. The claimants rely on section 32 of the Limitation Act 1980, alleging that Uber deliberately concealed facts relevant to their cause of action. A trial of a preliminary issue was listed for June 2026 to determine whether the claimants discovered, or could with reasonable diligence have discovered, the alleged fraud before June 2018, when the evidence from Uber's licensing appeal became public.
The documents at issue
In relation to the preliminary issue, Uber sought disclosure of documents from the claimants’ solicitors. In December 2017, the litigation funder Harbour retained Mishcon de Reya as its solicitors (before any individual cab driver had done so) to investigate the viability of a potential claim against Uber. Mishcon de Reya engaged with the Licensed Taxi Drivers' Association (LTDA) and its members. A dedicated Harbour file was opened in March 2018.
Individual claimants only began retaining Mishcon de Reya directly from October 2018. It was the documents created in the earlier period, while the solicitor-client relationship was between the firm and the funder, that Uber sought on disclosure as potentially relevant to what the drivers actually knew or could reasonably have discovered before June 2018.
The privilege question: Litigation privilege and its limits
The claimants resisted disclosure on the basis of litigation privilege. Birt J rejected that argument.
Litigation privilege protects communications between parties (or their solicitors) and third parties made for the sole or dominant purpose of conducting litigation in progress or in reasonable contemplation. But it is the use of the document in the conduct of the litigation that attracts the privilege, not merely its creation in a litigation context.
The claimants argued that a funder's assessment of whether to back a claim is equivalent to a prospective claimant's own decision whether to litigate, which the authorities confirm falls within "conducting litigation". Birt J disagreed. A claimant's decision to commence and fund their own claim is part of conducting their litigation. A funder's decision is no more than a decision to fund someone else's litigation; it is not the funder's decision to start proceedings, and it remains for the individual claimant to decide whether to proceed once the funding decision is taken.
Nor is it material that the documents addressed merits and quantum rather than purely commercial funding terms. The test turns on the purpose for which communications were created, not their content. Birt J drew support from Aikens J's analysis in Winterthur Swiss Insurance Co v AG (Manchester) Ltd [2006] EWHC 839 (Comm), where documents created for ATE insurers to assess whether to issue a policy were held not to attract litigation privilege even though they went to the substance of the potential claims.
Control: A further complication
The claimants also argued the documents were not within their control and so fell outside their disclosure obligations. The court rejected this. Once Mishcon de Reya began acting for the claimants, the firm owed them a fiduciary duty to disclose all information material to their claims, including information gathered while retained by Harbour. A continuing duty of confidentiality to Harbour did not extinguish the obligation to make that material available to the claimants the firm subsequently represented.
An attempt to rely on a standard retainer clause to exclude the duty to disclose also failed: the clause was ambiguous, had not been drawn specifically to any claimant's attention, and no informed consent to its effect had been given.
What this means for you
- Those using funding should treat pre-funding documents as disclosable. Documents created during a funder's due diligence process should be assumed to be disclosable. Legal advice privilege may protect communications between the funder and its own solicitors, but it will not cover third-party communications such as those with potential claimants or expert witnesses.
- Defendants facing a funded action should look carefully at any claims to privilege, particularly where they cover communications that took place before the funding was in place.
- The timing of the solicitor-client relationship matters. Where a firm acts first for a funder and later for the eventual claimants, documents from the funder's retainer are not automatically protected. Once the firm is retained by the claimants, it may owe them a duty to disclose that material, placing it within their control for disclosure purposes.
- Privilege must be properly articulated. The court criticised the claimants' disclosure certificate for failing to describe adequately the basis on which privilege was claimed. Privilege logs should be maintained carefully from the outset, identifying the type of privilege and the class of documents to which it applies.
- Retainer exclusion clauses require informed consent. Any contractual attempt to exclude the duty to disclose information from a prior retainer must be explicit and the subject of genuine, informed agreement by each individual client. Uploading standard terms to a digital portal will not suffice.
