Sotheby's v Mark Weiss Ltd: Judge rules that litigation privilege cannot be claimed

The claimant sought to claim litigation privilege in respect of correspondence passing between it and two expert advisers. Teare J has now held that litigation privilege could not be claimed over that correspondence.

The judge rejected a suggestion that the recent Court of Appeal decision in SFO v ENRC had changed the law where a document has been brought into existence for two purposes (one of which is for litigation). The court must still ascertain whether the dominant purpose of the document was obtaining information or advice in connection with, or of conducting or aiding the conduct of, litigation.

Here, the correspondence had taken place for two purposes: the first, whether the claimant had to rescind the sale to its buyer (a commercial decision); the second, whether the claimant could then sue the defendant in respect of its sale to the claimant. The judge held that both purposes were of equal importance and relevance and it was unable to conclude that the pursuit of litigation had been the dominant purpose. Nor did it matter that litigation would inevitably follow from the commercial decision: "I do not read the ENRC case as deciding that whenever litigation is the "inevitable" consequence of taking a particular commercial decision, the dominant purpose of documents produced for the making of that decision is necessarily their use in the contemplated litigation".

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