India: English Court Of Appeal Clarifies Scope Of Litigation Privilege

  • Legal advice given to avoid, or even settle proceedings which are reasonably contemplated, would receive the same level litigation privilege as in cases of defending or resisting litigation.
  • Litigation privilege does not cover all documents brought into existence for the purposes of actual or contemplated litigation, unless it was for the sole or dominant purpose of such litigation.
  • Litigation privilege does not extend to documents concerned with the settlement or avoidance of litigation where the documents do not seek advice or information for the purposes of conducting the litigation nor reveal the nature of such advice or information.

In the recent case of WH Holding Limited and West Ham United Football Club Limited ("WH Holding") v. E20 STADIUM LLP ("E20"),1 the English Court of Appeal ("Court of Appeal") held that all internal corporate communications of a company or recording commercial proposals claiming privilege, would not receive the blanket protection of litigation privilege. The documents need to satisfy the test of sole or dominant purpose of conducting litigation.

Factual Background:

Pursuant to a dispute between the parties, on the number of seats that West Ham was entitled to use in a stadium, an application was filed by the WH Holding to inspect certain documents which were in possession of E20. The application was filed before the High Court of England and Wales ("High Court"), pursuant to Rule 31.19(6)(a) of the Civil Procedural Rules.

High Court Decision

The High Court dismissed the application permitting an appeal on certain limited grounds as discussed below. The High Court held that:

  • Litigation privilege does not apply to expert determination of disputes envisaged under agreement between parties but only to court related proceedings.
  • Documents prepared for the dominant purpose of formulating and proposing the settlement of litigation that is in reasonable contemplation (or in existence) are protected by litigation privilege.
  • The principle applied since litigation was in reasonable contemplation since 31 August 2016 and documents challenged in the proceedings, dealt with development of a potential settlement offer for resolving disputes between the parties ("Disputed Documents"). Therefore, the Disputed Documents would avail litigation privilege.

Issues before Court of Appeal:

  1. Whether the doctrine of litigation privilege extends to documents concerned with the settlement or avoidance of litigation where documents neither seek advice or information for conducting litigation or reveal the nature of advice or information?
  2. What is the correct approach to be taken by a court to an application for inspection of documents where a claim to privilege is challenged2?
  3. Whether the High Court considered or applied the "dominant purpose" test when addressing the question of whether to inspect certain documents which were disputed ("Disputed Documents")?

Of all the documents in issue before the High Court, some were privileged for "implicitly reflect[ing] legal advice" and were subsequently not challenged in the appeal. There were some other Disputed Documents, in respect of which WH Holdings challenged the redactions made therein. These Disputed Documents were essentially six emails exchanged between E20 and its Board members and stakeholders.

Arguments Advanced:

WH Holdings contended that only documents to which litigation privilege can be attached are documents concerned with obtaining advice or evidence for use in litigation as that would be within the ambit of "conducting" the litigation. This narrow approach was erroneously rejected by the High Court misinterpreting the Court of Appeal decision in SFO v. Eurasian Natural Resources Corporation Limited (ENRC).3 The ENRC decision had not removed the requirement that communications to be for dominant purpose of conducting litigation, must be concerned with advice or evidence but merely confirmed that the conduct of litigation includes its avoidance or compromise.

E20 submitted that the Disputed Documents, being internal communications, had been prepared with the dominant purpose of discussing a commercial proposal for the settlement of the dispute between the parties, at a time when litigation was in reasonable contemplation. "Conducting litigation" encompasses discussions relating to formulating, finalising, and setting out a purely commercial settlement proposal and includes avoiding or settling litigation.

Decision of the Court of Appeal

The Court of Appeal allowed the appeal relying on the Three Rivers DC decision4 and held that litigation privilege does not extend to documents concerned with the settlement or avoidance of litigation where the documents do not seek advice or information for the purposes of conducting the litigation nor reveal the nature of such advice or information.

A. Litigation Privilege

Relying on the decisions in Three Rivers DC5, the Court of Appeal held that legal professional privilege is a single internal privilege including litigation privilege restricted to adversarial proceedings and legal advice privilege. Legal advice privilege is dependent on the involvement of a lawyer while litigation privilege is not.

Documents exchanged between parties and lawyers seeking information or advice in connection with existing or contemplated litigation are privileged only on fulfillment of certain conditions.6 The general principle applicable to litigation privilege is that – 'the documents must be produced or communications be made for obtaining information or advice in connection with existing or contemplated litigation'. This is further qualified by the pre-requisite to establish that it was done "for the sole or dominant purpose of conducting that litigation."

Legal advice given to head off, avoid, or even settle reasonably contemplated proceedings would receive the same level litigation privilege as in cases of defending or resisting litigation.7 Deciding "whether" to defend or prosecute an action includes a decision to conclude it by compromise and therefore conduct of litigation include its avoidance or compromise.

The Court of Appeal held that litigation privilege would not extend to the Disputed Documents in the present case, which had been created with the dominant purpose of discussing a commercial settlement of the dispute when litigation was in contemplation. All internal corporate communications would not receive the blanket protection of litigation privilege. The Court of Appeal concluded that:

  1. Litigation privilege is engaged when litigation is in reasonable contemplation.
  2. Once litigation privilege is engaged it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation.
  3. Conducting the litigation includes deciding whether to litigate and also includes whether to settle the dispute giving rise to the litigation.
  4. Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege.
  5. There is no separate head of privilege which covers internal communications falling outside the ambit of litigation privilege as described above.

B. Appropriate Test for inspection of documents to ascertain claims of privilege

The Court of Appeal held that High Court erred in applying the test of 'reasonable certainty' that privilege was wrongly claimed while dealing with the issue of inspection of Disputed Documents. Further, courts may inspect documents in relation to which privilege is claimed with due caution. Discretion should be exercised based on nature of privilege claimed, number of documents involved and potential relevance to issues.

C. Purpose of creation of the Disputed Documents

WH Holdings had challenged the High Court decision on one of the grounds that it had failed to assess whether the Disputed Documents were actually created with the dominant purpose of adversarial litigation as opposed to non-adversarial expert determination.

The Court of Appeal acknowledged the findings of the High Court, notwithstanding that the latter had not analysed the purpose of each of the documents, i.e. whether they had been produced with the dominant purpose of litigation or if they were for determination of issues by an expert as a possible means of dispute resolution. The Court of Appeal held that the High Court was justified in arriving at its conclusion that the concerned documents had been produced to dispose of the litigation, for the following reasons:

  • Litigation had been in reasonable contemplation since 31 August 2016, tentatively five months prior to the Disputed Documents being produced;
  • In situations where there are multiple ways of resolving a dispute, one of which is adversarial litigation, and litigation is in reasonable contemplation, the dominant purpose requirement of litigation privilege is satisfied if the information or advice is obtained for settling the dispute.

Concluding Remarks:

By way of this judgment, the Court of Appeal has sought to demarcate the boundaries around the scope of litigation privilege and clarified that unless internal communications pertain to advice or information obtained for the purpose of conducting the litigation, they may be disclosed. Higher level of caution needs to be exercised by parties involved or contemplating litigation in protecting internal communications concerning settlement. Needless to say, the extent to which internal communication or such other documents prepared by a company would be protected by litigation privilege, would be governed by the facts, circumstances and the evidence adduced. This decision also invites attention towards the concept of 'without prejudice privilege' which excludes all negotiations genuinely aimed at settlement, whether oral or in writing, from being given in evidence. The High Court decision briefly dealt with this aspect and observed that it could lead to a scenario where a 'without prejudice' offer to WH Holdings to dispose contemplated litigation would not be before court but document recording terms and discussion of the offer would be open to inspection and inclusion in trial, giving rise to an odd situation. The Court of Appeal ruling does not deal with this aspect.


1 [2018] EWCA Civ 2652

2 This hotline is limited to the issues concerning legal professional privilege, and does not discuss this issue.

3 [2018] EWCA (Civ) 2006 (ENRC)

4 Three Rivers DC v. Governor and Company of the Bank of England [2004] UKHL 48

5 ibid

6 (i) Litigation must be in progress or in contemplation; (ii) The communications must have been made for the sole or dominant purpose of conducting that litigation and (iii) the Litigation must be adversarial, not investigative or inquisitorial.

7 SFO v Eurasian Natural Resources Corporation Ltd [2018] EWCA CIV 2006 ("ENRC") (please refer to our hotline available at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Payel Chatterjee
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions