Background

In Uber London Ltd & Ors v White & Ors [2026] EWHC 1610 (Comm), the Commercial Court (Birt J) considered whether documents generated while solicitors were retained by a litigation funder to investigate a potential group claim by taxi drivers, before any individual claimant had been signed up to the group action, were protected by privilege.

Key facts

In December 2017, the litigation funder Harbour retained Mishcon de Reya to investigate a potential claim by black cab drivers against Uber. During that retainer, Mishcon de Reya communicated with the Licensed Taxi Drivers' Association, of which a number of the Claimants were members. Individual claimants were signed up from October 2018 onwards, and Harbour funded the early stages of the claims until November 2019.

Two weeks before the preliminary issue trial, Uber applied for disclosure of correspondence between Mishcon de Reya and Harbour, correspondence with the LTDA and its members, and documents on the file opened in Harbour's name, in each case pre-dating October 2018 (the “Harbour Communications”). The claimants resisted on grounds of relevance, privilege, control and proportionality. 

Key takeaways on privilege

1. Legal advice privilege follows the retainer. Because Harbour was Mishcon de Reya's client at the relevant time, legal advice privilege attached to qualifying communications between them (paragraph 35). Legal advice privilege did not, however, extend to communications with third parties such as the LTDA or individual drivers, save insofar as those communications disseminated the privileged advice itself (paragraph 36).
2. A funding decision is not the conduct of litigation. It was common ground that litigation was in reasonable contemplation when Harbour instructed Mishcon de Reya.  However, the evidence was that the Harbour Communications were created for the dominant purpose of enabling Harbour to decide whether to fund the claim and not for the dominant purpose of conducting litigation. While it is right that a decision whether or not to litigate is part of the conduct of litigation, there was no suggestion in the evidence that the funder intended to conduct the litigation. The Court held that a funder's decision whether to fund someone else's litigation is not equivalent to a claimant's decision to pursue its own claim (paragraphs 53–56). Litigation privilege therefore did not attach (paragraphs 58–60).
3. Funders can claim litigation privilege — but only if the dominant purpose test is met. Non-parties, including funders, may in principle claim litigation privilege if the creation of the documents over which privilege is claimed satisfy the dominant purpose test. Here, however, the dominant purpose test was not satisfied (paragraph 55).
4. It is not appropriate to draw a distinction between communications that go to the merits and those that deal with the terms of the funding arrangement. The Claimants had sought to argue that the advice sought by Harbour related to the merits and quantum of the underlying claim in order to determine its viability and inform Harbour’s assessment of whether or not to litigate.  The Court rejected that argument and held that it was not appropriate to distinguish documents whose contents went to the merits and quantum of the potential claim from documents whose contents dealt with other matters, such as the terms of the funding arrangements. The test for litigation privilege refers to the purpose for which the documents were created; while the content of the documents may inform the analysis of the purpose, it is not determinative of it (paragraph 57).
5. Blanket privilege claims are inadequate. A disclosure certificate which simply asserts that documents have been withheld for privilege does not comply with PD 57AD. The class of documents being withheld, and the basis of the claim for privilege, must be properly described (paragraphs 105-109). 

Comment

The decision exposes a privilege gap in funder-led claim origination. Material generated to support a funding decision, including communications with prospective claimants and trade bodies, may prove disclosable in the very litigation the funder goes on to fund.  This is particularly the case where limitation is in issue, because any communications that go to the claimant’s knowledge are highly relevant and there are likely to be good arguments that communications with funders fall into this category.

The same issue arises in the context of ATE Insurance. Communications with ATE Insurers risk becoming disclosable in future proceedings as the dominant purpose of such communications is, rather than the litigation itself, whether ATE Insurance will be issued.

While legal advice privilege may still apply in some instances, it is clear that careful thought needs to be given to the nature and content of communications with funders and insurers to ensure that, in the event such documents become disclosable in future proceedings, those communications do not compromise the claims being brought.