The ruling clarifies that a litigant can withhold disclosure of communications even if the other person was unaware that the communication was for a privileged purpose.
In recent years, the English court has examined litigation privilege carefully. However, no aspect has been the subject of more scrutiny than the requirement that documents that a litigant seeks to withhold must have been prepared for the “dominant purpose” of preparing for litigation.
In Ahuja Investments Limited v. Victorygame Limited and Surjit Singh Pandher, the court considered a situation in which one party to an exchange of correspondence withheld from the other their underlying dominant purpose, which was to prepare for litigation with a third party. The court permitted the assertion of litigation privilege, distinguishing previous authority that deception destroyed a claim to privilege. However, the decision raises some difficult questions about precisely whose intention matters if the document in question is correspondence involving multiple authors. Continue Reading