An element of deception disclosure and dominant purpose

Pre-action correspondence between solicitors can be covered by litigation privilege

In a judgment handed down last week, the High Court found that litigation privilege can apply to pre-action protocol correspondence between two parties, A and B, even where such correspondence was, in fact, an information-gathering exercise (including an "element of deception") in relation to other prospective litigation between A and a different party, C. To reach this conclusion, the court considered the dominant purpose behind these documents coming into existence. 

The case concerned a property transaction between the claimant ("A") and the defendants ("C"). In relation to that transaction, A's current solicitors wrote to A's former solicitors ("B"), under the professional negligence pre-action protocol, with B's insurers replying some 11 months later. 

A then brought proceedings against C alleging misrepresentation in the property transaction. C sought disclosure of the correspondence relating to the potential professional negligence claim. A refused, arguing that, despite the letter of claim being sent under the professional negligence pre-action protocol, the real and dominant purpose was to elicit information to be used in the present proceedings and that, therefore, both the letter of claim and the response were covered by litigation privilege. The witness statement of A's solicitors confirmed this position. 

C contended however that, assessed objectively, that was not the dominant purpose of the correspondence. At first instance, the Master agreed, ordering A to disclose the documents. He considered that, in determining the dominant purpose, he should not only look at A's intention, but also how the correspondence would have been seen by B and its insurers.

On appeal, however, the Judge overturned this decision and held that litigation privilege applied to the correspondence, which was therefore protected from disclosure to C. He considered the rationale underlying litigation privilege in arriving at this conclusion, noting that the "main focus" should be on the position of the litigant claiming privilege and that "the purpose of litigation privilege is to enable a litigant to obtain information which can be placed before their legal advisers for the purpose of pursuing their proceedings without having to worry that such information may have to be disclosed to the other party."

To determine the dominant purpose, the Judge noted that the purpose which is relevant is that of the instigator/creator of the document and that this person's purpose must be determined objectively based on all of the evidence, including their subjective intention. Accordingly, the Judge found that the point of view of B and its insurers was only part of the evidence which the court had to take into account in determining whether, objectively, A's purpose was that outlined in its solicitor's witness statement.

Another issue considered by the court was whether a principle of law exists that prevents a claim to privilege where a party conceals the true purpose of its request for information. The Judge reasoned that “an element of deception” does not prevent the claim to litigation privilege from succeeding. 

C further argued that in order to succeed in a claim for litigation privilege, the information must be confidential and that there is no confidentiality between opposing parties in litigation. The Judge noted that this was the case in relation to legal advice privilege rather than litigation privilege where the position may be more nuanced.  However, even assuming it was a requirement, the Judge held that both A and B would have considered the correspondence to be confidential as far as third parties (such as C) were concerned. 

Case Reference: Ahuja Investments Ltd v Victorygame Ltd & Ors [2021] EWHC 1543 (Ch)

Authors: David Capps, Partner and Andrew Sims, Solicitor