Uber London Limited & Ors v Garry White & Ors

Documents held by solicitors may be relevant to a limitation issue even where they cannot automatically be treated as evidence of the claimants’ knowledge. Evidence of what others discovered may illuminate what was reasonably discoverable by the actual claimants.

Litigation privilege depends on the purpose for which communications were created. A litigation funder’s investigation undertaken to decide whether to fund another person’s litigation is not, without more, conduct of litigation. Once solicitors act for claimants in claims previously investigated for a funder, relevant information held by the solicitors may be within the claimants’ control, subject to any effective and informed consent.

Disclosure shortly before trial must remain reasonable, proportionate and necessary. A focused review of documents bearing directly on an individual’s knowledge may be ordered, while a wider review of material concerning lawyers’ or funders’ own knowledge may be refused as marginal and disproportionate.

The judgment concerned joined unlawful means conspiracy claims brought against three companies in the Uber group. The claimants included black-cab drivers and an assignee of companies formerly involved in private-hire services.

The claims were issued after the primary limitation period had expired. The claimants relied on section 32 of the Limitation Act and a preliminary issue trial was listed to determine when the alleged fraud or deliberate concealment was, or could with reasonable diligence have been, discovered.

The defendants sought disclosure of communications generated when Mishcon de Reya had investigated potential claims for the litigation funder Harbour, before the solicitors were formally engaged by individual claimants. The issues were relevance, privilege, control, proportionality, metadata and the adequacy of privilege explanations.

1. Relevance. The Harbour Communications were potentially relevant to the preliminary limitation issue. Communications involving individual drivers could bear directly on their actual knowledge. Communications involving the LTDA, Harbour or Mishcon de Reya could also illuminate what steps, documents and conclusions were reasonably available to the claimants. The objective reasonable-diligence test remains directed to the actual claimants, not to a hypothetical claimant or an automatic imputation of the funder’s or solicitors’ knowledge.
2. Litigation privilege. The governing conditions are that litigation is in progress or contemplation, the communication was created for the sole or dominant purpose of conducting that litigation, and the litigation is adversarial. Conducting litigation includes deciding whether to litigate. However, Harbour’s purpose was to decide whether to fund litigation which it would not conduct. The evidence did not show that Harbour intended to conduct the proceedings or that the material was created for use in conducting them. The Harbour Communications therefore did not attract litigation privilege. Legal advice privilege remained potentially applicable to communications between Harbour and Mishcon de Reya which satisfied that separate test.
3. Control. After the claimants became clients, Mishcon de Reya owed them a duty to make material information concerning their claims available, absent an effective agreement to the contrary. The evidence did not establish that the later retainer terms were agreed on the claimants’ behalf or that they gave informed consent to surrender their existing rights to the information. The documents were accordingly within the control of the claimants in the first action. Harbour’s possible confidentiality rights did not automatically prevent disclosure, particularly since Harbour asserted privilege but did not object to disclosure of non-privileged material.
4. Proportionality and necessity. A review limited to documents bearing on the actual knowledge of individual drivers was reasonable, proportionate and necessary for the just disposal of the proceedings. A review directed to the knowledge of Mishcon de Reya or Harbour was refused because that material was indirectly relevant, much of it was likely privileged, and the exercise would be difficult and yield little. The alternative application under CPR 31.17 did not require detailed determination.
5. Privilege explanations and metadata. The disclosure certificate was inadequate because it merely described withheld material as privileged. The claimants were required to provide a fuller explanation identifying the privilege claimed and the relevant documents or classes. Further metadata disclosure beyond the information already offered was refused as disproportionate at that late stage.

First-instance disclosure ruling in joined proceedings. No appellate history is stated in the judgment.