In brief
- In Uber London Ltd & Ors v White & Ors (Re Disclosure) [2026] EWHC 1610 (Comm) the Commercial Court has handed down a significant judgment on the limits of litigation privilege.
- The court's decision that communications made to enable litigation funders to decide whether to fund proposed litigation did not attract privilege has important implications for both litigants and litigation funders, particularly in the context of group actions.
- However, the decision does not categorically exclude funders from claiming litigation privilege, and privilege will still be available to prospective claimants where the dominant purpose of communications is to enable them to decide whether or not to litigate.
Background
In the underlying claims Mishcon de Reya is instructed by approximately 13,300 black cab drivers and the assignee of two former ride-sharing companies against Uber London Ltd and its Dutch and US parent companies. The claims, which cover a period between 2012 and 2018, arise out of an alleged conspiracy by Uber to cause loss by unlawful means.
Although the claims were issued outside the primary limitation period, the claimants rely on section 32 Limitation Act 1980 to postpone that period on the basis that the alleged fraud had not, and could not with reasonable diligence, have been discovered by them before certain information was made public.
A preliminary issue trial on limitation was ordered and, in advance of the hearing, the defendants sought disclosure of communications which were made while a litigation funder had engaged the firm to investigate potential claims, but before any individual claimants were clients. The defendants argued that such communications were relevant (and thus disclosable) because they might indicate the actual knowledge of individual claimants, or at least what individual claimants could reasonably have discovered at the time.
Unusually, in this case there had initially been a lawyer-client relationship between the funder and the firm and so the defendants accepted that (subject to review) legal advice privilege would apply to many of the communications for which disclosure was sought. However, the claimants also contended that litigation privilege applied to all communications between the funder and the firm, without there being any need for review. This was the key issue addressed by the court.
Litigation privilege
Litigation privilege is one of the two categories of legal professional privilege. Resting on the principles of access to justice, the proper administration of justice, a fair trial and equality of arms, it enables a party to obtain advice and information in connection with the conduct of litigation without fear that what has been said or written will subsequently need to be disclosed.
In particular, litigation privilege protects:
- Confidential communications between a lawyer and client, or either of them and a third party;
- Made for the sole or dominant purpose of conducting adversarial litigation;
- Which is either in progress or contemplation.
The key question in Uber was whether the communications in question satisfied the dominant purpose test. The evidence indicated that the dominant purpose of the communications was to enable the funder to decide whether to fund the claim. The claimants contended that this was part of the conduct of litigation on the basis that the conduct of litigation includes deciding whether or not to litigate, an integral part of which is deciding whether or not to spend money on the claim.
However, the judge did not agree. He distinguished the position where an individual litigant takes a decision about whether or not to start a claim, including whether to put money into it, from the position where a funder decides whether to fund someone else's litigation. In the former case, the judge concluded that the claimant's decision is part of its conduct of litigation, but in the latter case he observed that it is not the funder's decision to start the litigation. Thus, the judge concluded that the funder was not conducting this or any litigation, with the result that litigation privilege would not be available.
The limits of the decision
The decision has important implications, particularly in group actions where a firm is seeking funding to investigate a potential claim in advance of building a book of claimants. In such circumstances, funders and lawyers need to be aware that their communications may not be protected by legal professional privilege. However, it is also important to remember that, particularly where limitation is not an issue, such communications are less likely to meet the relevant test for disclosure.
Moreover, the impact of the decision should not be overstated in the context of more typical commercial cases, where there is a pre-existing client relationship with a potential claimant before funders are approached. In those circumstances it may be more straightforward to satisfy the dominant purpose test. The judge also highlighted that materials provided to funders which contain or evidence privileged legal advice may remain protected by privilege. It may also be possible to rely on limited waiver where privileged material has been disclosed on confidential terms.