Privilege preserved for litigation funding agreements: Edwardian Group Ltd and another v Singh and others [2017]

Posted by Nicola Diggle on
In Edwardian Group Ltd[1], the Court refused a claimant the right to get disclosure of the litigation funding documents.

The application concerned an application for disclosure of the petitioner's litigation funding documents. Disclosure had been refused by the party on the basis that these documents were privileged. While the respondents accepted that references to solicitors' legal advice on the merits or on the strategy of the case were privileged, they disagreed that discussions between the party and funders relating to the terms of the funding were also privileged, so wanted full disclosure.

Relying on Financial Services Compensation Scheme Ltd [2], the respondents submitted that being able to infer the substance of a party's legal advice from a document was not sufficient for that document to be privileged. They argued that test to be applied was that legal privilege only applied where communications revealed the content of legal advice.

Morgan J clarified previous cases, holding that there should be a distinction drawn "between a case where there is a definite and reasonable foundation in the contents of the document for the suggested inference as to the substance of the legal advice given and merely something which would allow one to wonder or speculate whether legal advice had been obtained and as to the substance of that advice". Privilege would apply in the former but not the latter.

Morgan J further stated that a court should be cautious before exercising its discretion under CPR 31.12 in order to withhold proportionate inspection of relevant non-privileged documents simply by virtue of an assertion that inspection would give the inspecting party a tactical advantage in the litigation, where there was not also a ground coming within those listed at CPR rule 31.3.

This case is good news for claimants entering into litigation funding arrangements as well as any party not wishing to disclose to its opposing party documents which contain or strongly point towards the content of legal advice.

[1] Edwardian Group Ltd and another v Singh and others [2017] EWHC 2805 (Ch)

[2] Financial Services Compensation Scheme Ltd v Abbey National Treasury Services Plc [2007] EWHC 2868 (Ch)

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Nicola is a Senior Associate in our Litigation and Dispute Resolution Division specialising in commercial litigation and dispute resolution. She has a great deal of experience acting for individuals and corporates.

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