2018 has seen two important rulings in respect of legal privilege as the Courts continue to interpret the scope of legal professional advice privilege and litigation privilege.
Litigation privilege applies where a document is created for the purpose of obtaining information or advice. The most recent ruling from the Court of Appeal concern West Ham Football Club and E20 (the Landlord of the Club’s Olympic stadium home). E20 claimed privilege over a number of emails exchanged between board members and stakeholders.
The Court of Appeal noted that the sole ground upon which privilege was being asserted by E20 was that the emails were created with the dominant purpose of discussing a commercial settlement of the dispute in litigation with West Ham was in contemplation. The ruling states that such “purely commercial discussions” could not be protected by privilege.
This ruling serves a reminder that organisations should be cautious when internal documents are created before or during litigation.