A Warning to Litigants Seeking Funding: English High Court Clarifies the Limits of Litigation Privilege

That was a question that the English Commercial Court had to answer in White v Uber London Ltd[1]. It answered it in the negative, as those communications were prepared for the dominant purpose of funding the litigation, not for the conduct of the litigation.

The judgment will be of interest not only in England and Wales but also in the Cayman Islands, where third-party litigation funding plays an increasingly important role in insolvency, shareholder, fraud and asset recovery litigation. English law is persuasive authority in the Cayman Islands and the decision therefore raises practical legal questions that Cayman Islands litigants, funders and attorneys should consider at the outset of any funding arrangement.

BACKGROUND

The proceedings concern a dispute between some 13,000 London cab drivers on the one hand, and Uber group companies on the other, involving allegations of unlawful means conspiracy. Limitation issues arose about whether the commencement of the limitation period was postponed by reason of alleged fraud and deliberate concealment. The question of when the claimants discovered, or could with reasonable diligence have discovered, the alleged wrongdoing was ordered to be tried as a preliminary issue.

The present judgment however relates to a disclosure application in relation to correspondence between Mishcon de Reya LLP (first engaged by the funder, and subsequently, by underlying claimants), Harbour Litigation Funding (Harbour), and the Licensed Taxi Drivers Association (LTDA).

Critically, before any claimants had formally retained Mishcon de Reya as their solicitors, Harbour had engaged the firm to investigate a potential claim against Uber. During that investigation, Mishcon de Reya communicated with Harbour and the LTDA, and in some cases, drivers who eventually became claimants in the proceedings. Uber applied for disclosure of those communications, arguing that they were relevant to the limitation issues because they could shed light on what potential claimants knew, or could reasonably have discovered, before the critical limitation date. The claimants resisted disclosure on grounds of relevance, privilege and control.

THE PRIVILEGE ISSUE

The most significant aspect of the judgment concerns litigation privilege.

The claimants accepted that Harbour had retained Mishcon de Reya as its solicitors and that legal advice privilege therefore attached to qualifying solicitor-client communications. They also contended that broader categories of communications were protected by litigation privilege because litigation was reasonably in contemplation and the documents were prepared as part of investigating the proposed claim.

Although there was no dispute that legal advice privilege would attach to communications between Harbour and Mishcon de Reya insofar as they met the test for legal advice privilege, the Court rejected the argument that litigation privilege applied.  Relying on the House of Lords decision in Three Rivers (No. 6)[2], the Court of Appeal in WH Holding[3], the High Court in Excalibur Ventures[4] and other English authorities, the Court emphasised that whilst litigation privilege protects communications created for the sole or dominant purpose of conducting litigation, the fact that contemplated litigation is the subject matter of a communication is not enough. The relevant question is why the document was created.

Conducting litigation includes deciding whether to litigate and also includes whether to settle the dispute giving rise to litigation.[5] However, the Court found that the terms upon which a litigant secures funding for his litigation does not engage litigation privilege.  Similarly, an after the event (ATE) insurance policy does not attract litigation privilege: neither has the dominant purpose of the conduct of litigation.[6] The distinction is based on the rationales behind litigation privilege, being: access to justice proper administration of justice, a fair trial and equality of arms, such that the conduct of litigation requires that (emphasis added):

the communications between a lawyer and his client and a lawyer and a third party and any communication brought into existence for the dominant purpose of being used in litigation must be kept confidential, without fear that what is said or written might be disclosed.[7]

The evidence before the Court was that the communications had been produced so that Harbour could decide whether to fund the proposed claims. The Court held that this was a funding purpose, not a litigation-conduct purpose. Harbour was deciding whether to finance litigation that others might bring; it was not deciding whether to commence proceedings on its own behalf which may attract a different analysis. It was relevant that Harbour had no intention to conduct the litigation, or play any role beyond being the funder, or that any documents it gathered for its funding decision might be thereafter used to conduct the litigation. Accordingly, communications created to enable that funding decision did not attract litigation privilege.[8]

The Court considered that this conclusion was consistent with prior authorities concerning litigation funding and ATE insurance, which distinguish between documents generated to facilitate funding decisions and documents generated for use in the conduct of litigation itself. On account of the purpose for which the documents were created, they did not attract litigation privilege.

A CAYMAN ISLANDS PERSPECTIVE

The decision is notable because it arrives at a time when litigation funding has become an increasingly significant feature of major offshore disputes.

Litigation funding is generally permissible in the Cayman Islands following the enactment of the Private Funding of Legal Services Act, 2020, which modernised the legal framework and clarified the permissibility of third-party funding arrangements. Third-party funding has consequently featured in insolvency, restructuring and commercial litigation. Modern funding structures are particularly common in liquidator-led claims, fraud recovery actions and complex shareholder disputes, where significant investigative work may be required before proceedings can be commenced. Against that background, funders routinely require extensive information regarding the merits, value and prospects of proposed claims before deciding whether to invest.

White v Uber serves as a reminder that parties should not assume that every communication exchanged during a funding diligence exercise will automatically be protected by litigation privilege merely because litigation is being contemplated (or indeed, because an attorney is engaged in the relevant communications). The English court’s focus remained firmly on the dominant purpose for which the relevant communications were created. If the purpose is to enable a commercial funding decision, rather than the conduct of litigation itself, privilege may not attach.

The decision may also prompt parties to think carefully about the structure of early case investigations, in particular:

• Different categories of privilege may apply to different communications. While attorney-client advice may remain protected by legal advice privilege in the usual way, communications involving third parties, industry bodies, experts or potential witnesses may require separate nuanced analysis.
• Where a law firm acts for a funder and subsequently for the funded party, unless there is informed consent, the funded party is entitled to all information held by the firm that is relevant to the claim (including information and documents obtained in the course of the prior instructions). Careful drafting of terms of engagement may mitigate against unintended effects of this principle.

KEY TAKEAWAYS

The decision offers several practical lessons:

• Funding and litigation are not the same thing. The fact that a communication concerns contemplated litigation does not mean it was created for the dominant purpose of conducting that litigation. A commercial decision whether to undertake funding of contemplated litigation does not, without more, attract litigation privilege.
• Privilege analysis remains document-specific. Courts will focus on the purpose for which documents were created, rather than the fact that they relate to the merits of a proposed claim.
• Early-stage funding diligence may create disclosure risk. Materials generated to persuade or inform a potential funder may not necessarily attract litigation privilege. Advice privilege may attach to the extent that the materials contain or evidence legal advice that does attract privilege, depending on the terms on which it was communicated to third parties.

CONCLUSION

Although White v Uber is an English disclosure decision, its implications are likely to resonate far beyond England and Wales. In an era where litigation funding plays an increasingly prominent role in large-scale disputes, the judgment provides a useful reminder that privilege cannot be assumed merely because litigation is in contemplation. Instead, courts will scrutinise the specific purpose for which communications were created. For Cayman Islands litigants, funders and practitioners alike, that is a point worth bearing in mind before the first funding memorandum is ever prepared.

[1] [2026] EWHC 1610 (Comm) (Mr Justice Birt) (White v Uber).

[2] [2005] 1 AC 610 (Lord Carswell).

[3] WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 (WH Holdings).

[4] Excalibur Ventures LLC v Texas Keystone Inc [2012] EWHC 2176 (QB) (Popplewell J) (Excalibur Ventures).

[5] WH Holdings, [27].

[6] At [40] – [42].

[7] Excalibur Ventures, [21] (citations omitted).

[8] At [53]-[57].