Litigation Funding And Privilege: High Court Finds Litigation Privilege Does Not Apply To Communications Prepared To Enable Funders To Assess Whether To Support A Claim

In a recent decision, the High Court has confirmed that a litigation funder cannot assert litigation privilege over communications prepared for the dominant purpose of assessing the commercial viability of a claim – even if that includes an assessment of its merits: White v Uber London Ltd, unreported, 12 June 2026 (Birt J). 

The decision is a useful reminder that, even where funders are closely involved in considering the merits of potential claims, litigation privilege can only apply where the dominant purpose is to obtain legal advice or information/evidence for the conduct of the litigation and not matters of funding.

The High Court also confirmed that, unless a law firm’s client has given informed consent, the client is entitled to all information held by the firm that is relevant to their claim. As such, if a firm acts for a litigation funder in assessing whether to fund a piece of litigation, and later represents the party to that litigation, any relevant material from the prior engagement will be in the party's control for the purposes of disclosure (unless they have provided their informed consent to waive that right). 

A HSF Kramer team led by Alan Watts and Rachel Lidgate, assisted by David Shepherd, Louisa Cranfield, Jennifer O'Brien and Eleanor Dunning, are acting for Uber in relation to this matter.

Background

This judgment arises out of a disclosure application brought by the defendants in claims for unlawful means conspiracy. The claimants are around 13,000 black cab drivers and an individual as assignee of the claims of two now liquidated minicab businesses. Mishcon de Reya are the solicitors for the claimants. The defendants are three entities within the Uber group.

The claims are proceeding to a trial on the preliminary issue of limitation, more specifically on the question of whether the claimants discovered, or could with reasonable diligence have discovered, Uber's alleged wrongdoing only after late June 2018. 

In the present application, Uber sought disclosure of correspondence between Mishcon, Harbour Litigation Funding (who was funding the litigation until November 2019) and the Licensed Taxi Drivers Association (LTDA) (a black cab drivers' trade association). The documents sought pre-dated the relevant date for the preliminary issue trial, and therefore, Uber contended, could potentially show that it was possible for the claimants to embark on the preliminaries to litigation earlier than they did. 

The claimants resisted disclosure on the basis that (i) the documents were not within the claimants' control; (ii) they were not relevant to the question of limitation to be determined at the preliminary issue trial; (iii) they were protected by legal professional privilege; and (iv) it would not be reasonable or proportionate to order them to carry out a further disclosure exercise in relation to such a large volume of documents in the short time left before trial (due to start less than a month later).

Decision

The High Court (Birt J) granted the disclosure application. It ordered the claimants to review the documents and disclose any material bearing on the knowledge or understanding of individual drivers, subject to any protection afforded by legal advice privilege to be assessed on a document-by-document basis.

(i) Control

The claimants argued that the documents were not within their control, on the basis that they were generated while Mishcon was engaged by Harbour to explore a potential claim against Uber, and before Mishcon had been engaged by any of the claimants. Accordingly, Mishcon had a professional obligation to Harbour to keep the documents confidential under para.6.3 of the SRA Code of Conduct. 

The court rejected that argument, holding that Mishcon was obliged to provide to its claimant clients all information material to their engagement unless they had given "informed consent" to that information not being disclosed to them, in accordance with paragraph 6.4 of the SRA Code. 

Mishcon argued that the claimants had given "informed consent", pointing to a provision in a 2024 retainer agreement between Mishcon and RGL Management Limited as agent for the black cab claimants. This provision stated that the firm may “have acted for persons in the same or similar sector as yours and by agreeing to the terms of this letter you agree that we will have no duty to disclose to you any confidential information that we have obtained, or might in the future obtain, from acting for such persons or which is derived from any other source” . The court rejected this argument, finding that the evidence was not sufficient to show that the individual claimants had agreed to waive their rights, and that the contractual clause would not amount to "informed consent" unless the claimants were aware that it means they were relinquishing rights to information relevant to their own claims.

As such, there was no need for the court to address the defendants’ alternative non-party disclosure application against Mishcon.

(ii) Relevance

The preliminary issue trial concerns whether the claimants discovered, or with reasonable diligence could have discovered, the facts relating to their claim before late June 2018. The claimants argued that the documents sought were not relevant to this issue, because the knowledge of the parties to these communications, ie Harbour, Mishcon and the LTDA, was not a proxy for the knowledge of the claimants. 

The court accepted that the documents were likely to contain relevant material because:

1. they may provide evidence of actual knowledge on the part of some claimants, who were members of the LTDA; and 
2. they may be relevant to what the claimants could have discovered with reasonable diligence, including by filling gaps left by other already disclosed material. Although the court recognised that what Mishcon and Harbour had discovered was not an automatic proxy for what individual drivers could have discovered, it concluded that it was difficult to see why those investigative steps would be wholly irrelevant: they may shed light on what steps were available to the claimants and what material existed at the relevant time to help them to establish a potential claim.

(iii) Privilege

The court confirmed that an assertion of privilege could not be made as a blanket objection to reviewing the documents. Privilege must be assessed on an informed, document-by-document basis.

On legal advice privilege, the court accepted that a substantial number of the documents might attract legal advice privilege, on the basis that Harbour was engaged by Mishcon as its client at the relevant time and therefore many documents may have been generated for the dominant purpose of giving or receiving legal advice. 

However, the court rejected the claimants' assertion of litigation privilege. The claimants' position was that any communications made for the dominant purpose of assessing whether it was worthwhile to bring litigation against Uber were also made for the dominant purpose of conducting that litigation. They argued that since a claimant assessing the merits and viability of a potential claim would be able to claim litigation privilege, there was no sound basis for holding that a funder should not be able to do so in similar circumstances.

The court disagreed, finding that the documents did not attract litigation privilege because they were not created for the dominant purpose of conducting litigation. Even accepting that litigation was in contemplation at the relevant time, the dominant purpose of the communications (on the claimants' own evidence) was instead to enable Harbour to decide whether to fund the claim. The court drew a distinction between a party assessing whether to bring their own claim (which would be subject to litigation privilege) and a funder assessing whether to support someone else's claim. A funder's decision whether to fund someone else's litigation did not amount to conducting that litigation, and therefore did not satisfy the dominant purpose test.

(iv) Proportionality

Mishcon argued that it would be disproportionate for them to be expected to review around 9,500 documents, particularly considering the need to prepare for the imminent trial. 

However, the court held that the disclosure exercise was reasonable and proportionate in the circumstances: the litigation is high value (total losses in both claims are alleged to exceed £300 million), Mishcon is an experienced and well-resourced City firm, and the claimants had failed to present any evidence that suggested this review could not be completed in a compressed timeframe in advance of the trial. To the extent that this resulted in a squeezed timetable in the lead up to trial, the court observed that the claimants were the authors of that situation.