The English Commercial Court judgment in White v. Uber London Ltd underlines the distinction between funding litigation and conducting litigation, highlighting the disclosure risks arising from investigatory materials created in connection with prospective litigation.
By Hayley Pizzey, Oliver Middleton, and Duncan Graves
Key Points:
- On the evidence before it, the court held that litigation privilege did not attach to documents created to enable a litigation funder to decide whether to fund proposed claims, even though litigation was accepted to be in reasonable contemplation. While a funder can, in principle, claim litigation privilege, this claim failed because there was no evidence that the funder would play any role beyond funding.
- The decision draws a line between a claimant deciding whether to litigate, which forms part of the conduct of its own litigation, and a third-party funder deciding whether to fund another party’s litigation, which is a commercial decision.
- The court also held the documents were within the claimants’ control, because their solicitors owed them a duty to make available information material to their claims. A retainer clause purporting to waive that right did not amount to informed consent on the evidence.
Background
In December 2017, Harbour Litigation Funding (Harbour) instructed Mishcon de Reya to investigate a potential claim against Uber. The law firm went on to act for the claimants in the claim.1
The underlying claims were issued in May and June 2024 by approximately 13,000 individual black cab drivers and by the assignee of two companies previously involved in private hire services,2 alleging unlawful means conspiracy by way of deliberate wrongdoing and fraudulent misrepresentation on Uber’s part.3 The total loss is estimated at over £340 million.
During Harbour’s investigation, Mishcon de Reya spoke to the Licensed Taxi Drivers’ Association (LTDA), a trade association whose members include many of the claimants. Mishcon de Reya did not begin acting for individual claimants until October 2018.
A preliminary issue arose under the Limitation Act 1980: whether the claimants discovered, or could with reasonable diligence have discovered, the alleged fraud or deliberate concealment (i.e., the alleged conspiracy) only after 25 or 26 June 2018, being the relevant limitation date.
Uber sought disclosure of correspondence between Mishcon de Reya and Harbour, correspondence between Mishcon de Reya and the LTDA and its members, and the contents of the “Harbour File” opened in March 2018 (together, the Harbour Communications).
Deciding to Fund Is Not Conducting Litigation in This Case
As a reminder, legal advice privilege protects lawyer-client communications for the dominant purpose of giving or obtaining legal advice; litigation privilege protects communications with clients and third parties where litigation is in progress or reasonable contemplation, and the communications are made for the dominant purpose of conducting that litigation.
It was accepted that legal advice privilege could attach to communications between Mishcon de Reya and Harbour, because at the relevant time there was a solicitor-client relationship between them. Both parties recognised that communications with third parties might also be covered insofar as they contained or evidenced that advice. Beyond that, legal advice privilege did not extend to communications between Mishcon de Reya and the LTDA or individual drivers. Those communications could only be protected by litigation privilege, and that was the primary issue between the parties.4
The key dispute between the parties was whether the dominant purpose test was met.5 Litigation privilege is not available merely because a document concerns contemplated litigation or is brought into existence for the purpose of actual or contemplated litigation; what matters is whether the document or its contents were created for the dominant purpose of conducting that litigation.6
The court found that the dominant purpose of the Harbour Communications was to enable Harbour to decide whether to fund the claim, not to enable Harbour or anyone else to conduct the claim.7 Whilst it was accepted that a funder can in principle claim litigation privilege where the dominant purpose test is met,8 there was no evidence in this case that Harbour was to play any role beyond funding. The court held that a third-party funder deciding whether to fund another party’s claim is making a commercial decision; it is not deciding to commence or conduct that litigation.
The court also rejected any simple distinction between communications dealing with merits or quantum and those dealing with funding terms. The content of a communication may inform the analysis of purpose, but it is not determinative; the question is why the communication was created.9
Why the Documents Were in the Claimants’ Control
The court also rejected the claimants’ argument that, because the documents were generated under Harbour’s retainer, they were within Harbour’s control rather than the claimants’.10
The decision stated that a solicitor’s continuing duties to one client do not absolve a solicitor of the duties owed to another.11 The decision also found it “inconceivable” that Mishcon de Reya would have thought itself unable to reveal to the claimants, or use for their benefit, information material to their claims learned during Harbour’s retainer.12 As the court put it, the claimants would have assumed “that they were joining a train that was already moving, not that their solicitors would work from a standing start”.13 Once the claimants had signed up, Mishcon de Reya therefore had a duty to make that information available (absent agreement to the contrary); and because the claimants had a right to it, they had control of the documents for disclosure purposes.14
The court therefore ordered the disclosure of documents bearing on the actual knowledge or understanding of individual drivers, whether or not they are claimants.
Key Takeaways
For funders and claimant firms: The risk is at its highest where a funder takes exploratory steps before claimants are identified, and instructs solicitors to diligence the claim who later act for those claimants. Investigatory material created in that window may sit awkwardly between legal advice to the funder and litigation later brought by others, exposing a potential “privilege gap”.15
Such material will not attract litigation privilege where its dominant purpose is to inform the funder’s commercial funding decision even if litigation is already in reasonable contemplation. The documents may also fall within the claimants’ control if the same firm comes on the record for them. Where a funder instructs separate counsel for diligence, the control analysis is unlikely to bite in the same way, although the privilege analysis may be unaffected.
For claimants: Claimants in more conventional funding arrangements, such as where they instruct their own solicitors and approach funders thereafter, are less exposed, as such communications with funders would ordinarily attract litigation privilege, and the funders’ own commercial deliberations on whether to fund would not be within the claimants’ control for the purposes of disclosure.
For defendants facing funded claims: The decision offers a potential pressure point. Where a funder’s early investigation preceded the claimant’s involvement, funding-related communications may be both unprivileged and disclosable.
This post was prepared with the assistance of Benjamin Laud in the London office of Latham & Watkins.
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