Litigation privilege: contemplated litigation and dominant purpose (SFO v ENRC; Three Rivers (No 6))

In SFO v ENRC [2018] EWCA Civ 2006, para 64, the Court of Appeal restated Lord Carswell's test in Three Rivers DC v Bank of England (No 6) [2004] UKHL 48. Communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged only when litigation is in progress or in contemplation, the communications were made for the sole or dominant purpose of conducting that litigation, and the litigation is adversarial. When Report 1 was commissioned, no claim had been suggested or contemplated, and its purpose was operational: finding the cause in order to improve safety. It fails the first two conditions, so it is not privileged and, if relevant, must be disclosed and is open to inspection. Report 2 was commissioned by solicitors after a letter of claim, for the dominant purpose of advising on defending that claim. It is protected by litigation privilege. Orion would lose that protection only if it chose to rely on the report as expert evidence.

Why A is wrong: A connection with the subject matter is not enough; litigation must be in contemplation and the dominant purpose must be the litigation.

Why B is wrong: Litigation privilege specifically covers communications with third parties, such as experts, made for the dominant purpose of contemplated litigation.

Why C is wrong: Later usefulness does not create privilege; the test is applied to the purpose and circumstances when the document was created.

Why E is wrong: A privileged expert report need not be disclosed unless the party chooses to rely on it; CPR 35.13 concerns reports a party wishes to use.