West Ham United Football Club Ltd (“West Ham”) is one of London’s most famous soccer clubs. It recently settled a long-running dispute with E20 Stadium LLP (“E20”), the landlord of the London Olympic Stadium where West Ham play home matches. The dispute centred on the number of seats available at the London Olympic Stadium for the matches.
The parties reached settlement just before kick-off, on the very morning of opening arguments. But not before they had been forced to go before the High Court and then the Court of Appeal for a ruling on the extent of litigation privilege.
Background: The Privilege Doctrine in English Law
Aside from “without prejudice” privilege, which protects off the record offers to settle or compromise litigation from being placed before the court on disclosure (discovery), the two most common forms of legal professional privilege are legal advice privilege and litigation privilege.
Legal advice privilege shields a party from having to disclose (produce) in litigation communications between that party and its solicitor. To qualify for the privilege protection, the communications must be confidential, sent to or from the solicitor in his/her professional capacity, and be provided or requested to give legal advice or assistance to the client. There is no need for litigation to have commenced or to even have been contemplated.
Litigation privilege is a slightly different beast, although it also operates in the context of litigation to shield certain communications from the disclosure obligation. Litigation privilege can only operate where litigation is contemplated or pending. But when it does operate it goes beyond legal advice privilege to cover: (i) communications between the solicitor and a third party to obtain information, evidence or advice for the litigation, and (ii) communications between the client and third parties if created to obtain legal advice in the litigation or contemplated litigation. The two forms of privilege often overlap.
The Question for the Court of Appeal in the West Ham Litigation
The parties became embroiled in a dispute about disclosure just before the start of their High Court litigation. E20’s solicitors had redacted (inked over) portions of six emails, which they claimed were protected by litigation privilege. The emails had been sent between E20 board members and stakeholders. The redacted portions were discussions of commercial considerations and proposals for the possible settlement of the probable litigation with West Ham. E20’s solicitors were not part of the communications and had not requested the E20 board to send them.
West Ham applied to the High Court (Mr Justice Norris) for an order to inspect E20’s redacted documents so that it could make submissions on whether the litigation privilege should apply to the redacted emails. Mr Justice Norris refused their application (motion) on most of its points. West Ham appealed to the Court of Appeal.
In their joint opinion, Sir Terence Etherton MR, Lord Justice Lewison and Lady Justice Asplin identified the central question on litigation privilege. Could it extend to documents:
- which are concerned with the settlement or avoidance of litigation, but
- which do not seek advice or information for the purpose of conducting litigation, nor
- reveal the nature of such advice or information?
They set this question in the context of a statement by the House of Lords (now the Supreme Court) in a classic case on the scope of legal professional privilege from 2004: Three Rivers DC v Governor and Company of the Bank of England (no 6). Counsel for West Ham and for E20 agreed that the statement of Lord Carswell on the scope of litigation privilege in that case was authoritative:
“ …communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:
- litigation must be in progress or in contemplation;
- the communications must have been made for the sole or dominant purpose of conducting that litigation;
- the litigation must be adversarial, not investigative or inquisitorial”.
The Court of Appeal accepted E20’s counsel submission that the concept of “conducting litigation” in (b) included avoiding or settling contemplated litigation.
But they overturned Norris J’s ruling in the High Court that, because the six redacted emails were created for the sole or dominant purpose of avoiding or settling the litigation, they were protected by litigation privilege. Their Lordships were adamant that to gain the protection of litigation privilege, E20 also had to demonstrate that the six emails had been created:
“for the [sole or dominant] purpose of obtaining information or advice in connection with existing or contemplated litigation”.
So the Court of Appeal waved offside E20’s skillful attempt to cut down the ambit of the litigation privilege test. They also blew the whistle on E20’s contention that English law has a separate category or privilege for internal communications within a corporate body.
Anyone wishing to send emails that contemplate settling or avoiding (future) litigation must have their solicitors on their team for that game.