Transport for Greater Manchester v Thales Transport & Security Ltd

Litigation privilege must be established by the party asserting it. Documents are privileged only where contemplated litigation was their sole or dominant purpose. Equal litigation and commercial purposes do not satisfy that test.

The court assesses the issue on all available evidence and may draw appropriate inferences. Evidence supporting privilege should explain the documents and their purpose with sufficient specificity, while preserving the protected substance. Contemporary documents, instructions and the character of the work may be more reliable than a later assertion of purpose.

The judgment concerned a residual disclosure issue following the court’s earlier judgment, [2012] EWHC 3717 (TCC). Transport for Greater Manchester sought disclosure of a December 2011 report prepared by the Nichols Group for Thales, together with related documents evidencing the instructions given to Nichols.

Thales claimed litigation privilege, asserting that the report had been prepared for the dominant purpose of gathering evidence for contemplated adjudication or litigation. Thales later abandoned privilege in respect of subsequent weekly flash reports, which dealt with both claims and commercial matters.

The central issue was whether Thales had established that the December 2011 report was created for the dominant purpose of contemplated litigation.

1. The claim for litigation privilege was not made out. The December 2011 Nichols report was to be disclosed by 11 February 2013.

2. The burden lay on Thales to establish privilege. Litigation privilege required litigation to be pending or reasonably contemplated and to be the sole or dominant purpose for which the document was created. Where litigation and another purpose were of equal importance, the test was not satisfied.

3. The court had to determine dominant purpose from all available evidence and could draw appropriate inferences. There was no fixed or universally applicable method of analysis because cases differed materially.

4. Evidence supporting a claim to privilege had to be sufficiently specific to show the deponent’s analysis of the documents and, in a litigation privilege claim, the purpose for which they were created. Contemporary material should be identified where possible without disclosing the substance of the protected communications.

5. The evidence did not establish a litigation-dominant purpose. The disclosed flash reports combined claims and commercial matters without any discernible weighting. There was no evidence from Nichols and no written instruction recording a change from its earlier retainer. The first deliverables document referred to project management, historical documents, timelines, commercial-technical correspondence and a shared commercial tool. Those matters were consistent with project and commercial support as well as claims preparation.

6. The December 2011 report could not reasonably be placed in a different category from the flash reports on the evidence. The court declined to inspect it because Thales had not discharged the burden and had already been given a further opportunity to provide evidence.

The judgment followed an earlier judgment of the same court concerning disclosure, reported at [2012] EWHC 3717 (TCC). The present judgment determined the outstanding privilege issue.