The Element Of Deception: Can A Party Claim Litigation Privilege Over Information Obtained By Misleading Another Party?

• Published date: 30 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Mayer Brown
• Author: Mr Robert Slattery and Alasdair Maher

Introduction

Litigation privilege is a familiar and long established feature of English court proceedings, and provides a party means to make further enquiries in connection with a dispute without risking disclosure down the track. A document will be subject to litigation privilege where it is a confidential communication between the lawyer and the client, or between either of them and a third party, it relates to litigation which is pending, reasonably contemplated or existing, and it is made for the dominant purpose of litigation.

But what happens where a party misleads another party as to the purpose of such enquiries? Can a party choose to elicit information from another party by claiming it is required for a purpose other than the proceedings in question, and still maintain a claim to privilege over such information? Or will the deception of a party invalidate their claim to privilege?

The Court of Appeal considered these issues in the recent case of Victorygame Ltd v Ahuja Investments Ltd¹.

Background

In March 2016, Ahuja Investments Limited ("Ahuja") and Victorygame Limited ("Victorygame") exchanged contracts for the purchase of a commercial property (the "Property"), the sale of which was completed in August 2018. Ahuja subsequently issued proceedings against Victorygame in May 2019 for fraudulent (or alternatively negligent) misrepresentations made with regards to the Property (the "Misrepresentation Proceedings").

Ahuja's legal representatives determined that further information was required from Stradbrooks, who were the solicitors who had acted for Ahuja in the purchase of the Property, to assist in the preparation of their claim. Stradbrooks had previously proven to be uncooperative, and Ahuja had already been required to make a third party disclosure application against the lawyers, including in relation to the conveyancing file.

In order to ensure Stradbrooks' co-operation in providing the further information required, Ahuja's legal representatives decided to employ the threat of issuing proceedings against Stradbrooks. Accordingly, a letter in the form of a Letter before Action was sent to Stradbrooks on 10 February 2020 (the "Letter"). On 19 December 2020, a letter of response was sent to Ahuja by legal representatives acting for Stradbrooks' professional indemnity insurers, which included the information requested from Stradbrooks (the "Letter of Response", and together with the Letter, the "Letters").

After Ahuja's legal representatives informed Victorygame's legal representatives about the Letters, Victorygame applied to the court for their disclosure. Ahuja contested disclosure of the Letters, arguing that they were both subject to litigation privilege.

Procee...