Almost a month ago, reports were circulating that, in group litigation against Uber, a Judge had decided that litigation privilege could not be claimed over communications with funders. Litigators I spoke to about the decision were perplexed and worried in equal measure, but the judgment had not been published, so no one quite knew exactly how perplexed or worried they should be. The judgment, given by Birt J, is now publicly available and, perhaps predictably, the shape of the issues in dispute were not straightforward. This is not to say, however, that this judgment will not have wider repercussions.
Summary of the relevant facts
In December 2017, Harbour, a litigation funder, engaged Mishcon de Reya (“MdR”) to investigate a potential claim against Uber by black cab drivers. As part of that investigation, MdR spoke to the Licensed Taxi Drivers’ Association (the “LTDA”), whose members included many of the individual Claimants. The LTDA liaised with members about its engagement with MdR and some drivers provided initial loss information. The documents generated during the period pre-dating the Claimants’ engagement of MdR were referred to in the judgment as the “Harbour Communications”.
MdR began acting for individual Claimants from October 2018 and issued claims on their behalf in 2024. It was accepted that the primary six-year limitation period had expired before the claim forms were issued. The Claimants therefore rely on section 32 of the Limitation Act 1980 and a preliminary issue trial was listed (and, at the time of writing, is taking place) to determine whether they discovered, or could with reasonable diligence have discovered, the material facts underlying their claim only after 25 or 26 June 2018.
Shortly before the preliminary issue trial, Uber sought disclosure of the Harbour Communications. Its case was that those documents might shed light either on the actual knowledge of individual Claimants or on what individual Claimants could reasonably have discovered before the relevant June 2018 dates.
Grounds for resistance
The Respondents to Uber’s application resisted disclosure of the Harbour Communications on the following bases: (a) relevance; (b) privilege; (c) control; (d) that it was not reasonable or proportionate for disclosure to be given at such a late stage. This note focuses on (b) and (c).
Privilege
There was no dispute between the parties that inspection could be withheld of documents protected by legal advice privilege (and many of the Harbour Communications are likely to be subject to it). The argument therefore centred on whether litigation privilege applied. In this respect, the Judge’s focus was on that element of the test in Three Rivers District Council & Ors v. Bank of England [2004] UKHL 48 requiring the relevant communications to have been made for the sole or dominant purpose of conducting the litigation.
In short, Birt J held that litigation privilege did not attach to the Harbour Communications. Harbour had sought legal advice for the dominant purpose of deciding whether to fund the claims, not for the purpose of conducting litigation. Birt J rejected the proposed equivalence between a third-party funder and a claimant deciding whether to bring its own claim. An individual claimant’s decision whether to litigate, including whether to commit funds, can form part of the conduct of that claimant’s litigation; a funder’s decision is a decision whether to fund someone else’s litigation.
Control
In support of their contention that the Harbour Communications were in the Claimants’ control, Uber relied on Hilton v Barker Booth & Eastwood (a firm) [2005] 1 WLR 567 for the proposition that a solicitor may owe a duty to disclose to a current client information material to that client’s matter, even where that information was obtained confidentially from another client.
Birt J accepted that Hilton did not consider whether the fact that a duty existed would result in the relevant communications being within the Claimants’ control, notwithstanding the inconsistent obligation on MdR in favour of Harbour. In answer to this question, Birt J drew on the context of the case. He found it inconceivable that MdR would have thought themselves under an obligation to Harbour not to reveal to the Claimants information that was material to their claims. There was no suggestion that the Claimants had signed up to the claims on the basis that such information would not be available (and Birt J dismissed the argument that a clause in a 2024 agreement did so).
Indeed, Birt J remarked that it would have been “bizarre” for Mishcon de Reya, having explained to prospective claimants that they had been investigating potential claims with a litigation funder who was going to fund the claims, to then have said they would not be using any information they had learned and would instead be starting entirely afresh with research into the claims and analysis of potential claims once the first claimant was signed up with them as a client.
Birt J therefore concluded that, at least in relation to certain Claimants, the Claimants had a right to the information held by MdR that related to their claims. The documents containing that information were therefore within their control for disclosure purposes. Harbour’s potential confidentiality interest did not prevent disclosure of non-privileged material, particularly where Harbour had asserted privilege but had not separately objected to disclosure on confidentiality grounds.
The Order
Importantly, the order made was narrower than the disclosure sought. The Court did not require a general review for documents showing what MdR or Harbour knew or understood about the merits of the potential claim. It required disclosure of documents bearing on the actual knowledge or understanding of individual drivers, whether or not they were ultimately claimants.
Take-away
This judgment is important, but its practical effect should not be overstated. It is not a blanket rule that all funder-related communications are disclosable, nor that litigation privilege can never be claimed by a litigation funder. Birt J accepted that litigation funders may, in principle, claim litigation privilege where the dominant purpose test is met. On these facts, however, the evidence showed that the dominant purpose of the Harbour retainer was to enable Harbour to decide whether to fund the claims.
The decision is nevertheless a warning for solicitors and funders involved in pre-claim investigations before individual claimants retain them. If a solicitor later acts for claimants whose claims were investigated under an earlier funder retainer, the court may conclude that the claimants have control of non-privileged documents containing information material to their claims, unless the position has been clearly and effectively addressed. Claimants in ongoing litigation whose solicitors were involved in investigating their claims before any retainer was in place may therefore need to revisit whether they have met their disclosure obligations, particularly given the continuing duty of disclosure (e.g. CPR 31.11, paragraph 3.3 of Practice Direction 57AD and rule 60(6) of the Competition Appeal Tribunal Rules 2015).
A wider point underlined by this decision is that parties should be precise about the purpose for which funder-related documents are created, who the solicitor acts for at each stage, and what will happen if the solicitor later acts for the claimant group. Where pre-claim investigations are carried out under a funder retainer, careful thought should be given at the outset to privilege, confidentiality, control and any later retainer terms. Privilege, confidentiality and control are distinct concepts: structuring a pre-claim investigation to preserve one will not necessarily preserve the others.
