The High Court has held that litigation privilege does not extend to documents created for the purposes of assessing the the commercial viability of funding litigation.

Published: 15 July 2026
Authors: Emma Carr

The High Court’s decision in Uber London Ltd & Ors v White & Ors (Re Disclosure) [2026] EWHC 1610 (Comm) serves as a useful reminder for prospective parties to litigation, their legal teams and potential funders that privilege cannot safely be assumed simply because a document discusses the merits of a claim or was created against the backdrop of contemplated proceedings.

The judgment does not itself establish any new law. Rather, it reinforces a principle that has become increasingly clear since the Court of Appeal’s decision in WH Holding Ltd & Anor v E20 Stadium LLP [2018] EWCA Civ 2652, a case with which the author was involved, namely that litigation privilege protects communications created for the dominant purpose of conducting litigation, not every commercial decision made because litigation is contemplated.

Background

The judgment arose out of a disclosure application in claims for unlawful means conspiracy brought against three entities in the Uber group. The Claimants include around 13,000 black cab drivers and the assignee of claims formerly held by two private hire businesses. The claims are proceeding to a preliminary issue trial on limitation, specifically whether the Claimants discovered, or could with reasonable diligence have discovered, Uber’s alleged wrongdoing only after late June 2018.

Against that background, Uber sought disclosure of pre-October 2018 communications between Mishcon de Reya (the Claimants’ solicitors), Harbour¹ (the litigation funder) and the Licensed Taxi Drivers’ Association (of which some individual Claimants are members). Uber contended that those documents could be relevant to what was known by, or reasonably discoverable to, the Claimants before the key limitation dates. The Claimants resisted disclosure on the basis of relevance, privilege, control and proportionality.

Why litigation privilege mattered

Litigation privilege is one of the most important protections available to parties preparing for disputes. It enables parties to investigate claims, obtain evidence and seek advice without fear that those communications will later have to be disclosed.

The difficult question is not usually the existence of the principle, but where its boundaries lie.

White v Uber asks a similar question in the funding context.

The funding context

Before proceedings were issued, Harbour had engaged Mishcon de Reya to investigate potential claims against Uber. At that stage, Mishcon de Reya had not yet been retained by the individual Claimant drivers. The documents in issue were generated while Mishcon de Reya was retained by Harbour and before it later acted for the Claimants.

The Court accepted that some material was relevant, particularly documents that might shed light on what individual drivers knew or understood about possible claims against Uber before June 2018. It also accepted that material showing what Mishcon de Reya and Harbour had discovered might, in principle, be relevant to what the Claimants could with reasonable diligence have discovered, although that category was more indirect.

The privilege decision

Mr Justice Birt held that the relevant Harbour communications did not attract litigation privilege on the evidence before the Court. Their dominant purpose was to enable Harbour to decide whether to fund the litigation. That was a commercial funding decision, not the conduct of litigation itself.

The judgment is not authority for the proposition that communications with funders can never be privileged. Nor does it remove the protection of legal advice privilege where a funder is receiving legal advice and the relevant test is satisfied – as the Court acknowledged would likely be the case here. Its significance is narrower, but important: litigation privilege will not arise merely because the documents concern contemplated litigation, analyse merits or quantum, or are created in the course of a proposed funding exercise. Instead the key question the court will ask is why the documents were created.

That focus on purpose is consistent with the approach in WH Holding. The fact that a communication may be commercially important to litigation, or may affect whether litigation can practically be pursued, does not necessarily mean that it was created for the dominant purpose of conducting the litigation.

Control and informed consent

The judgment also contains an important control point. Where a law firm first acts for a funder in assessing a potential claim and later acts for the claimants, relevant material from the earlier engagement with the funder may be within the claimants’ control for disclosure purposes. That will be difficult to avoid unless (i) the claimants have given properly informed consent to the firm withholding that information² and (ii) that information is in fact withheld.

Practical takeaways for in-house teams (acting as claimant or defendant) and funders

• where material is created primarily to enable a prospective funder to decide whether to invest, litigation privilege should not be assumed simply because legal analysis and the contemplation of litigation appears within it. Funding workstreams should be structured with privilege in mind from the outset.
• second, there is a practical tension. Funders will need enough information to assess merits, quantum and risk, but claimants and their advisers should consider carefully whether material prepared or shared for that purpose is privileged, and on what basis.
• funders and funded parties should distinguish between documents created for a funding decision and documents created, if applicable, for the conduct of litigation. The former may not attract litigation privilege, even where the proposed claim is analysed in detail. The latter may still be protected if the dominant purpose test is satisfied and/or if legal advice privilege applies.
• defendants facing a funded action should scrutinise claims of litigation privilege where funding-related communications are withheld on a blanket basis. Privilege claims need to be properly made and explained. It is not enough simply to describe a class of documents as “privileged” without identifying the type of privilege claimed and the basis for it.
• in-house legal teams should focus on purpose from the outset. The label attached to a document, or even the presence of detailed legal analysis, is unlikely to be determinative if the communication was created to facilitate a commercial decision rather than the conduct of litigation.  As ever, careful consideration should be given to who within the organisation can properly be regarded as the “client” for privilege purposes.

Read alongside WH Holding, White v Uber illustrates a consistent judicial approach rather than a change of direction. The Courts are maintaining a distinction between communications created for the conduct of litigation and communications created to support commercial decisions associated with litigation, such as commercial decisions surrounding settlement and funding.

That distinction is likely to become increasingly important as third party funding and ATE insurance continue to play a greater role in commercial disputes.

¹ There are various Harbour entities and for reasons explained at para 80 of the judgment none were party to the application however it appears the relevant entity was Harbour Fund IV LP.
² For the purposes of paragraph 6.4(b) of the SRA’s Code of Conduct