Privilege and litigation funding – a tightrope walk

White v Uber

In White & Ors v Uber London Ltd & Ors [2026] EWHC 1610 (Comm) claims were made by approximately 13,000 London Black Cab drivers against Uber for damages arising from unlawful means conspiracy through the alleged misrepresentation of Uber’s business model. The alleged misrepresentation allowed Uber to obtain a private hire vehicle operators licence and to compete with Black Cabs.

At a hearing of a preliminary issue last month, the question arose as to whether communications between the claimants or their lawyer, Mishcon de Reya, and a litigation funder, Harbour Litigation Funding were privileged. Those communications were prior to the commencement of proceedings and entered into to enable the funder to decide whether to support the claims.

The High Court held that documents prepared in seeking funding for a claim did not constitute steps in “conducting” litigation. As a result, unless the communications were protected by legal advice privilege (where Mishcon had acted for Harbour at the relevant time), they would need to be disclosed to Uber.

To disclose or not to disclose

The decision in White v Uber leaves claimants in a difficult position when seeking funding. On the one hand they must be honest and transparent about the strengths and weaknesses of their case to enable funders to make an informed decision as to whether to support the claim. On the other hand, claimants must also be cautious that anything disclosed to the funder will either be protected by some other privilege (e.g. legal advice privilege) or will not prejudice their case if it has to be disclosed. It is unclear whether it would be sufficient for a party to provide a copy of counsel’s advice to a funder with an express preservation of privilege in the document itself.

The reasoning in the claim was that the dominant purpose of the provision to a third party was to consider finance for the claim and not for the conduct of the litigation. Some lawyers would see steps taken to secure funding in a claim as integral to the conduct of litigation (no claim can be conducted without some agreement as to funding), particularly one of such high value and with so many claimants. That argument was rejected.

The relationship between the litigation funder and the claimants was atypical in that the terms of the retainer between the individual claimants and their lawyers provided a waiver of their rights to information and documents created for the litigation funder and therefore not in conduct of the litigation.

Read in its entirety the Judgment provides much greater nuance where it can be seen that the issue is not clear cut and that legal advice privilege could be attached to some documents but not others, and litigation privilege did not extend to a class of documents relating to the actual knowledge of individual drivers. Whilst relevant, documents relating to the claimants’ lawyers or the funder’s understanding meant that the court did not order those documents to be disclosed.

Mr Justice Birt provided the key takeaway for all lawyers: they need to give some thought to the likely impact on trial preparations if documents were likely to be disclosed.

This is not the first time that this case has generated interesting points of law. In October 2025 the Court heard an application in relation to cost budgeting and ordered cost budgets despite the claim value being vastly above the relevant threshold of £10m. In that judgment Mrs Justice O’Farrell concluded that much of the additional burden on the parties could be resolved by cooperation.

It is also not the last important issue that the court will have to deal with in this case. A question of limitation will form a further preliminary issue at trial; whether the claimants could reasonably have discovered the alleged misrepresentation by Uber before 2018. This case will likely provide useful commentary on limitation defences based on date of knowledge.