English High Court Applies Dominant Purpose Test For Litigation Privilege To Expert Reports

Following the recent decision by the English Court of Appeal in SFO v ENRC (subject of this Legal Update) in relation to principles governing litigation privilege, the English High Court last week handed down a decision in Sotheby's v Weiss and others [2018] EWHC 3179 in which the "dominant purpose" test was applied to determine whether litigation privilege attached to certain correspondence passing between Sotheby's (the auction house and art dealer) and art experts regarding reports prepared in the context of an art dispute. The Court held that the correspondence was not covered by litigation privilege because it could not be said that the documents were created for the dominant purpose of contemplated litigation, even though it was clear litigation was in contemplation at the time and the experts' reports would be used for that litigation. This Legal Update examines the Court's reasoning behind this finding, which may be viewed as a strict application of the dominant purpose test for litigation privilege.

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