The perils of internal emails and over redaction

It’s rare for shipping lawyers to find something of interest in a football case. However, a recent Court of Appeal decision in the Chancery Division of the High Court (1) has provided further guidance on the scope of litigation privilege. The facts of the case are not so important save that it concerns West Ham’s use of the former Olympic Stadium. During the course of the dispute one of the parties applied for disclosure of unredacted copies of documents disclosed.

Snowden J allowed the application notwithstanding the alleged commercial sensitivities of the redactions. He did so as a last resort. However, he warned that parties need to be careful that they do not overly redact disclosable documents and those who fail to take care to ensure that redactions were justifiable should be prepared to suffer adverse costs orders.

Importantly, the Court of Appeal ruling also held that internal emails between a company’s board members exchanged for the purposes of discussing commercial proposals for settlement were not protected by litigation privilege and were therefore disclosable. This is a problem that comes up time and time again and can be managed by ensuring that communications pass through external solicitors.

The law on litigation privilege is clearly set out in the Three Rivers No5 case (2) and the Court of Appeal has now clarified that the correct test is whether the documents were created for the dominant purpose of obtaining information or advice in connection with existing or contemplated litigation.

(1) WH Holding Ltd & West Ham United Football Club Ltd v E20 Stadium LLP [2018] EWHC 2578 (Ch)

(2) Three Rivers No 5 (The Three Rivers District Council and Others V Governor and Company of the Bank of England [2004] UKHL 48

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