A recent ruling in West Ham v E20 has clarified the scope of litigation privilege and the circumstances in which courts will inspect documents over which privilege has been claimed.

By Daniel Smith and Clare Nida

In a significant decision, the English Court of Appeal has restricted the scope of litigation privilege in relation to purely commercial communications (even if connected to the litigation), and has clarified the grounds upon which a judge might be prepared to inspect disputed documents.

In light of West Ham United v E20 Stadium (No. 2) [2018] EWCA Civ 2652, companies should exercise caution when disseminating documents, information, and communications amongst non-lawyers even in litigious matters. They should seek English law advice if any matters may involve litigation in the English court, as the court may not find that they attract litigation privilege.