High Court Rejects Privilege for Litigation Funding Documents

The High Court in *White v Uber London Ltd* recently ruled that documents created for the dominant purpose of enabling a litigation funder to decide whether to finance a group action are not protected by litigation privilege. Mr Justice Birt distinguished between a party assessing its own claim, which may attract privilege, and a funder evaluating another party's claim, holding that the latter does not satisfy the 'dominant purpose' test for the conduct of litigation. This decision has significant implications for claimants seeking third-party funding, highlighting the need for careful consideration of disclosure issues and the potential for communications with funders to be discoverable. The ruling reinforces the strict application of the dominant purpose test in English law and serves as a crucial reminder for legal practitioners and litigation funders alike.

The landscape of litigation funding in England and Wales continues to evolve, with recent judicial pronouncements shaping the boundaries of established legal principles. A significant development emerged from the High Court in the unreported case of *White v Uber London Ltd*, where Mr Justice Birt delivered an ex tempore ruling on 12 June 2026, clarifying the scope of litigation privilege in the context of third-party funding. The court held that documents generated primarily to assist a litigation funder in making a funding decision do not fall within the ambit of litigation privilege.

This decision sends a clear message to practitioners and funders: the commercial assessment by a funder of a potential claim is distinct from the 'conduct of litigation' for privilege purposes. The ruling underscores the strict application of the 'dominant purpose' test for litigation privilege and necessitates a re-evaluation of how communications with funders are managed to safeguard confidentiality. It also provides defendants with a potential avenue to seek disclosure of documents that might reveal the claimants' early knowledge or strategic considerations.

This article will delve into the High Court's reasoning in *White v Uber London Ltd*, examine the foundational principles of litigation privilege, and discuss the practical implications for parties involved in funded litigation in Great Britain. It will also briefly touch upon the broader regulatory context of litigation funding, including the Supreme Court's decision in *R (PACCAR Inc) v Competition Appeal Tribunal*, to provide a comprehensive understanding of the current environment.

Legal professional privilege is a cornerstone of the English legal system, designed to protect the confidential relationship between a lawyer and their client, thereby promoting candour and facilitating the administration of justice. It comprises two main types: legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications between a lawyer and client for the dominant purpose of seeking or giving legal advice. Litigation privilege, which is broader in scope, protects confidential communications between a lawyer and client, or between either of them and a third party, where such communications are made for the dominant purpose of actual or reasonably contemplated adversarial litigation.

For litigation privilege to apply, two key conditions must be met: first, litigation must be in progress or reasonably in contemplation; and second, the communication must be made for the sole or dominant purpose of conducting that litigation, which includes obtaining advice or evidence in connection with it, or for avoiding or settling it. The 'dominant purpose' test requires that the preparation for litigation be the prevailing or most influential purpose; if there are two equally important purposes, litigation privilege will not apply. The Civil Procedure Rules (CPR) Part 31 governs the disclosure and inspection of documents in civil proceedings, allowing parties to withhold documents protected by privilege from inspection.

The landscape of litigation funding has also seen significant developments. Third-party funding has become an increasingly prevalent mechanism for enabling access to justice, particularly in complex and high-value claims. However, its regulatory treatment has been subject to scrutiny. Notably, the Supreme Court in *R (PACCAR Inc) v Competition Appeal Tribunal* [2023] UKSC 28 held that certain litigation funding agreements (LFAs) where the funder's remuneration is calculated as a percentage of damages recovered constitute 'damages-based agreements' (DBAs). This classification rendered many such LFAs unenforceable if they did not comply with the strict requirements of the Damages-Based Agreements Regulations 2013, creating considerable uncertainty in the market. While *PACCAR* focused on the enforceability of funding agreements themselves, the *White v Uber* decision addresses the distinct, but related, issue of privilege attaching to documents generated during the funding procurement process.

The High Court's decision in *White v Uber London Ltd* concerned a group action brought by black cab drivers against Uber, alleging unlawful means conspiracy. Uber sought disclosure of documents exchanged between the claimants' solicitors, Mishcon De Reya, their then funder (Harbour), and the Licensed Taxi Drivers Association (LTDA) during a period when Mishcon was engaged by the funder to explore the potential claim, prior to being formally instructed by the claimants. The claimants resisted disclosure, asserting litigation privilege over these communications.

Mr Justice Birt, in his ex tempore ruling, rejected the assertion of litigation privilege. He accepted that litigation was in contemplation at the relevant time, but crucially found that the dominant purpose of these communications was to enable the funder to decide whether to fund the claim, rather than the conduct of the litigation itself. The court drew a critical distinction: while a party's assessment of whether to bring its own claim might be privileged, a funder's assessment of whether to support *someone else's* claim does not amount to 'conducting that litigation' and therefore fails the dominant purpose test for litigation privilege.

This ruling highlights the strict interpretation of the 'dominant purpose' test. It suggests that the commercial decision-making process of a funder, even when intertwined with an assessment of legal merits, is viewed by the court as separate from the direct conduct of the litigation. This contrasts with situations where a party or its legal team prepares documents for the purpose of obtaining legal advice or evidence for the litigation, which would typically be privileged. The decision aligns with the principle that privilege is not a blanket protection for all communications related to a dispute, but rather applies narrowly to specific categories of communications serving particular purposes.

Furthermore, the court addressed the issue of control over the documents. It held that if a law firm initially acts for a litigation funder in assessing a claim and subsequently represents the claimants in that litigation, any relevant material from the prior engagement would be deemed to be in the claimants' control for disclosure purposes. This is unless the claimants have given informed consent for that information not to be disclosed to them, in accordance with paragraph 6.4 of the SRA Code of Conduct. This aspect of the ruling adds another layer of complexity, requiring careful management of information flows and client consent when a law firm transitions from advising a funder to representing the funded party.

While the *PACCAR* decision primarily concerned the enforceability of LFAs as DBAs, the *White v Uber* ruling complements it by clarifying the privileged status of documents generated during the funding process. Together, these cases underscore a judicial trend towards greater scrutiny of litigation funding arrangements and their ancillary documentation, demanding increased transparency and adherence to strict legal tests for both enforceability and privilege.

The High Court's decision in *White v Uber London Ltd* serves as a critical reminder for legal practitioners and litigation funders operating in Great Britain. The ruling firmly establishes that documents created for the dominant purpose of a funder's commercial decision to finance litigation are unlikely to be protected by litigation privilege. This distinction between a party's own assessment of a claim and a funder's assessment of another's claim is paramount and must be carefully considered from the outset of any funded litigation.

Practitioners advising claimants seeking third-party funding should proactively address potential disclosure issues. This may involve structuring engagement letters and confidentiality agreements with funders to clearly define the purpose of shared information, and advising clients on the potential for such documents to become disclosable. Careful thought should be given to what information is provided to funders and when, particularly before formal instructions are taken by the claimant's solicitors. For defendants, this ruling offers a valuable tool to seek disclosure of documents that could shed light on the early stages of a claim's development and the claimants' knowledge, potentially impacting arguments around limitation or the merits of the case. The message is clear: the decision to fund litigation is not, in itself, the conduct of litigation for the purposes of privilege.