Jurisdiction(s):
United Kingdom

Litigation privilege narrowed: internal corporate settlement discussions not privileged absent legal advice; wider judicial inspection of documents—Court of Appeal (England and Wales), WH Holding v E20 Stadium

Published on: 04 January 2019

Published by a LexisNexis Dispute Resolution expert

Legal News

Article summary

WH Holding Ltd and another company v E20 Stadium LLP [2018] EWCA Civ 2652, [2018] All ER (D) 17 (Dec) What are the practical implications of this case?

The decision carries significant consequences across commercial litigation, particularly matters where board minute records, litigation-related emails, or other confidential or off-the-record exchanges sit at the heart of the dispute. It reshapes practitioners’ approach to disclosure and tightens the reins on attempts to hide unhelpful material behind vague assertions of privilege. Practically, the Court of Appeal’s ruling demands much closer examination of litigation privilege by contentious lawyers. As a result, parties cannot automatically cloak minutes of internal meetings—where directors or staff debate commercial settlement—with litigation privilege if the conversation neither seeks evidence or advice for the case nor expressly or by necessary inference discloses the substance of legal advice. Put plainly, minutes of settlement-focused discussions that neither obtain material for the proceedings nor reveal legal counsel’s advice will not be protected. Accordingly, lawyers should adopt a more exacting, document-by-document analysis when advancing privilege, and avoid a broad-brush stance to claiming and asserting privilege...

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