Litigation privilege under CPR Practice Direction 51U Disclosure Pilot

Northumbria Healthcare NHS Foundation Trust and another v Lendlease Construction (Europe) Ltd and others [2022] EWHC 2116 (TCC)

This analysis was first published on LexisNexis® on 21 September 2022 and can be found here (subscription required).

Construction analysis: Mrs Justice O’Farrell reviewed the relevant authorities concerning a claim of legal privilege over relevant documents under the Practice Direction 51U Disclosure Pilot. This judgment arose from the sixth case management conference in a £140m dispute over alleged construction defects in the Northumbria Specialist Emergency Case Hospital, completed by Lendlease in 2015. A significant element of the claim is for the cost of a facility into which sections of the hospital can be decanted while repairs are undertaken to the main building.

What are the practical implications of this case?

Complex technology and construction cases will often require specialist assistance during the process of drafting pleadings and responding to requests for information, in addition to the preparation of expert reports. In the instant case a group of healthcare specialists (‘the Small Project Group’) had been convened by the hospital to assist in developing the proposed decant scheme in consultation with the legal advisors. The court provided helpful guidance as to the factors the court will consider in determining whether litigation privilege can be asserted over the deliberations and work product of such technical advisors.

What was the background?

The defendants made an application for specific disclosure of the documents produced by or for the Small Project Group in their consideration of the decant scheme. The claimant’s witness statement in response (from the partner with conduct of the litigation on behalf of the claimants) recorded that: ‘all of these meetings [of the Small Project Group] were convened by my firm at our request to allow us to develop and plead the decant scheme that would be needed in our answers to the RFIs and our pleadings. I do not understand how it can be said that those meetings and any minutes or notes of them are not privileged’. The claimants therefore resisted the application on the grounds of litigation privilege.

What did the court decide?

Paragraph 14.1 of the Disclosure Pilot at Practice Direction 51U provides that a party who wishes to claim a right or duty to withhold disclosure or production of a document, part of a document, or class of documents, which would otherwise fall within its disclosure obligations, may exercise that right by describing the document or class of document and explaining the grounds on which it claims that right or duty. Paragraph 14.2 provides that a party who wishes to challenge the exercise of such a right or duty must apply to the court by application notice supported where necessary by a witness statement.

The court had considered the test for litigation privilege in the previous case management conference (Northumbria Healthcare NHS Foundation Trust and another v Lendlease Construction (Europe) Ltd and another [2022] EWHC 1266 (TCC)). That decision had considered an application by the claimants for disclosure of documents over which litigation privilege was asserted (successfully) by the defendants. In that decision, the court had been satisfied that the claim to litigation privilege was established taking into account the following factors:

• the explanation for privilege set out in detail in the witness statement of the defendant’s solicitor including the circumstances in which the documents referred to were produced
• that the documents were produced after the pre-action protocol letter of claim had been received, when litigation was in contemplation
• that the individual concerned was identified as one of the individuals who constituted the instructing client and was responsible for seeking and/or receiving legal advice from the solicitors in relation to the contemplated litigation, and
• that the documents were produced as part of the workstreams identified in the strategy meetings formed for the purpose of conducting the litigation

At para [14] of the present decision, O’Farrell J again set out the relevant authorities on which she had founded her previous judgment. In particular, the principles of the scope of, and requirements for litigation privilege were as described in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48. She further relied upon Mr Justice Beatson’s judgment in West London Pipeline and Storage Ltd v Total (UK) Ltd [2008] EWHC 1729 (Comm) and Mr Justice Hamblen’s decision in Starbev GP Ltd v Interbrew Holding BV [2013] EWHC 4038 (Comm) Applying those principles to the defendants’ application, the judge agreed with the claimants’ solicitor—it could not be understood why the meetings of, and an minutes or notes from, the Small Project Group would not be privileged:

‘It is clear to the court that the Small Project Group was formed for the express purpose of dealing with the RFIs and the pleading of the claimants’ case on decant. It did not have a secondary purpose, let alone a dominant purpose of considering the appropriate decant scheme for the purpose of operating the hospital, or indeed for the purpose of reporting to the Trust Board so as to obtain a decision as to any specific works to be carried out.’ (at para [22])

Taken together, both of these decisions from the fifth and sixth case management conferences provide helpful guidance on the tests applicable to litigation privilege. Where there is specialist advice being provided by third parties to the legal team clear instructions, careful consideration of timing, and a limited brief will all assist in successfully asserting litigation privilege.

Other factors taken into consideration by the judge in determining the application were—the timing of the application in relation to disclosure, the proximity to trial, the prior opportunities to make such an application and the defendants’ non-objection to the proposed general approach to privileged documents.

O’Farrell J also commented on the approach that should be taken to specific disclosure requests under the Disclosure Pilot. Such requests should identify the disclosure issue against which disclosure is requested—which may not be the same as the pleaded issues in the case. As she said: ‘…it is not sufficient…that the documents sought are generally relevant to the issues’. Parties should try and identify the specific documents sought, or for example the specific relevant meetings, and identify the specific relevant disclosure issue that the court will have to resolve. Requests of a very general or broad nature are unlikely to be viewed favourably.

Case details

• Court: Technology and Construction Court (QBD), Business and Property Courts of England and Wales, High Court of Justice
• Judge: Mrs Justice O’Farrell DBE
• Date of judgment: 13 July 2022

Nicholas Higgs is a barrister at 39 Essex Chambers and is instructed by No