12 Jan 2019

WH Holding Ltd and another v E20 Stadium LLP [2018] EWCA Civ 2652

Facts

The parties were involved in litigation arising from a contract between them. Various emails had passed between members of E20's board, and between board members and stakeholders. E20 claimed that they had been written with the dominant purpose of discussing a commercial proposal for settling a dispute between the parties, when litigation was a reasonable prospect. WH Holding Ltd made an application for the court to inspect six of the emails. E20 argued that litigation privilege applied.

Decision

The Court of Appeal held that the discussions were purely commercial and there was no authority or justification for extending the scope of litigation privilege. It therefore ordered disclosure of the emails. The Court set out some helpful guidelines relating to litigation privilege.

Comment

This decision shows that the courts are generally unwilling to extend privilege. Companies must be careful about internal communications concerning litigation-related matters, as they may not be protected by privilege even where there is a reasonable chance of litigation.