9 Nov 2023
The draft notice and internal email were prepared for the purpose of being laid before the Council's legal advisers and arose out of the solicitor-client relationship; therefore they attract legal advice privilege under s54 Evidence Act 2006, the plaintiffs identified no arguable error of law or fact to justify leave, and leave to appeal was refused.
28 Aug 2023
The Court held that litigation was reasonably apprehended on the morning of 3 July 2020 and that the eight challenged documents were created or annotated after that date for the dominant purpose of preparing for litigation; accordingly they attract litigation privilege under s56 Evidence Act 2006, and where applicable the draft notice to fix documents also attracted legal advice privilege under s54. One document (HDC.05.00037) was waived by Council. The plaintiffs' application to set aside or modify the Council's privilege claims was dismissed.
25 Nov 2021
s56 privilege was not established because, on the evidence, litigation was only a possibility when the Crawford materials were prepared and the dominant purpose of those materials was investigatory and to quantify the insurer's loss (for claims handling and indemnity assessment) rather than preparation for litigation; therefore the claim to privilege fails and the Crawford documents must be discovered; no separate order under r 8.19 was made because Eli Lilly's affidavit of documents adequately identified the claim to privilege.
18 Mar 2019
The plaintiff failed to provide the necessary evidential foundation to satisfy both limbs of s56 (reasonable apprehension of litigation and dominant purpose) so privilege was not established for the disputed documents; the defendant established relevance and proportionality under r8.19 and particular discovery was ordered; plaintiff must file an amended affidavit of documents and make specified documents available for inspection; costs awarded to defendant.
2 Aug 2018
External counsel communications were privileged under s54; privilege for in-house counsel communications failed because insurer did not prove practising certificates or that communications were legal rather than managerial; litigation privilege under s56 failed because insurer did not establish litigation was reasonably apprehended nor that preparation for litigation was the dominant purpose of Deloitte and other investigative materials; settlement privilege under s57 failed because there was no attempt to mediate or negotiate settlement and no dispute in the relevant sense; accordingly most…
1 Nov 2016
Document AM1431 attracted litigation privilege because at the time the Saunders Robinson Brown solicitors reasonably contemplated apprehended proceedings and the dominant purpose of the email interchange was preparation for that litigation; accordingly the document is not disclosable under s 56 Evidence Act 2006 and the plaintiffs' inspection application fails.
29 Jun 2016
Ms MacGregor failed to prove on the balance of probabilities that document A6 was prepared for the dominant purpose of litigation before a court/Tribunal; consequently the s56 privilege did not apply and disclosure to the parties was ordered subject to confidentiality protections.
27 Oct 2015
The application for leave to appeal is dismissed because the primary issue was one of fact; Judge Henare lawfully applied s17(4) using a 'dominant purpose' formulation consistent with the statute and her factual finding that the appellant failed to establish absence was primarily in connection with employment was open on the evidence, so no question of law capable of bona fide serious argument remained.
5 Aug 2014
Because litigation was reasonably apprehended at the time the communications were made and the communications were prepared to respond to the REAA complaint and equally to prepare for the anticipated litigation, the dominant purpose included preparation for litigation and the communications were privileged under s56(2)(a) Evidence Act 2006.
16 Jul 2012
The Court accepted counsel's representation that Mr Goldsmith's memoranda contained legal advice and declined to inspect or order production of those documents because inspection would not assist in resolving the factual question of MKFSI's entitlement to assert privilege. By contrast the Court ordered the McKenna memorandum to be produced for in camera inspection and required the defendant to file further submissions because there was insufficient response to plaintiffs' arguments that the memorandum may not meet the dominant purpose test and may be subject to waiver or be spent.