WH Holding Ltd & Anor v E20 Stadium LLP

Litigation privilege protects communications made for the sole or dominant purpose of obtaining information or advice in connection with existing or reasonably contemplated adversarial litigation. Conducting litigation includes deciding whether to commence, defend or settle it. The privilege does not extend to purely commercial settlement discussions unless protected information or advice cannot be disentangled from them, or disclosure would reveal its nature.

There is no separate privilege for a corporation’s internal communications. When privilege is challenged, the court has a general discretion to inspect the documents. Inspection is not confined to cases where an error is already reasonably certain, although the court should proceed cautiously and consistently with the overriding objective.

West Ham challenged E20 Stadium LLP’s assertion of litigation privilege over six internal emails between E20’s board members and stakeholders. The emails discussed a commercial proposal for settling a dispute about West Ham’s entitlement to use seats at the London Olympic Stadium. Litigation was reasonably contemplated, but the emails neither sought advice or information for conducting it nor disclosed such advice or information.

Norris J dismissed West Ham’s application under rule 31.19(6)(a) of the Civil Procedure Rules 1998: [2018] EWHC 2784 (Ch). The appeal concerned the scope of litigation privilege, the court’s discretion to inspect documents over which privilege is claimed, and the dominant-purpose requirement where both litigation and expert determination were possible methods of resolving the dispute.

1. Appeal allowed. Litigation privilege did not protect the disputed emails, and E20 was ordered to disclose them. Although litigation was reasonably contemplated, the claim was based solely on the emails having been created for the dominant purpose of discussing a commercial settlement.
2. Litigation privilege protects communications between parties or their solicitors and third parties made for the purpose of obtaining information or advice in connection with existing or contemplated adversarial litigation. The communication must also have been made for the sole or dominant purpose of conducting that litigation. Conduct includes deciding whether to litigate and whether to settle the underlying dispute.
3. The decision in SFO v Eurasian Natural Resources Corporation Ltd [2018] EWCA CIV 2006 confirmed that conducting litigation includes avoiding or compromising it. It did not enlarge the protected categories to include purely commercial settlement discussions unrelated to obtaining advice or information. Privilege remains an exception to the availability of relevant material and should not be extended beyond its established justification.
4. A document is nevertheless protected where qualifying advice or information cannot be disentangled from it, or where disclosure would reveal the nature of that advice or information. A document outside litigation privilege may also qualify for legal advice privilege.
5. There is no independent privilege covering internal corporate communications. Mayor and Corporation of Bristol v Cox (1884) 26 Ch D 678 was wrong in treating internal committee material as protected merely because it was confidential or produced through the corporation’s agents, and was overruled on that point.
6. The court’s power to inspect documents under rule 31.19(6) of the Civil Procedure Rules 1998 is a general discretion. It is not conditional on the court first being reasonably certain that the claimant to privilege has misunderstood the test. The court should act cautiously, recognise the risk of viewing documents out of context, and apply the overriding objective. Relevant considerations include the nature of the privilege, the number of documents and their potential relevance.
7. Although unnecessary to the disposition, the judge had not erred on the dominant-purpose issue. Where a dispute may be resolved by several adjudicative routes, one being reasonably contemplated adversarial litigation, the requirement is met if qualifying information or advice is obtained for settling the dispute. No further allocation between the possible routes is necessary.

1. Court of Appeal (Civil Division): Allowed the appeal and ordered disclosure of the disputed documents: [2018] EWCA Civ 2652.
2. High Court, Chancery Division: Norris J substantially dismissed West Ham’s application for judicial inspection of the sample documents, subject to directions concerning other documents: [2018] EWHC 2784 (Ch).