Privilege and Expert reports

[2011] EWHC 268 (Comm), [2011] Lloyd’s Rep IR 544 TEDR Volume: 16 Issue: 1

The Facts

The Defendants claim litigation privilege over various pieces of material that were obtained and prepared pre-proceedings. The law was not seriously in dispute but was helpfully reiterated.

Issues

When is a pre-action report privileged?

The Decision

The law was re-affirmed as follows:

For a document to be protected by litigation privilege two conditions had to be satisfied. Firstly, at the time the document in question was created, litigation must be reasonably in prospect and not a mere possibility. It was not sufficient for there to be a distinct possibility of litigation in the future or a fear that future litigation would follow. However it was re-affirmed that it was not necessary to show that there was a greater than 50% chance of litigation.

Secondly, the document in question must have been made either with the sole or at least the primary purpose of using it for advice about actual or anticipated litigation.

Clearly, an Affidavit which explains the purposes of the document was instructive but was not conclusive if it appeared from the document itself that the characterisation of it was misconceived. The Court was at liberty to consider all the evidence as to whether or not a document fell within the description above.

Comment

Accordingly, it is important for an expert advising a party to confirm on what basis that advice is to be given and to reflect the same in the document where there is an issue. The instructions and/or the document itself can be viewed with a view to the Court deciding whether or not litigation privilege attaches and therefore care should be taken when acting as an expert in such a role.