High Court Rules on Disclosure Risks in Litigation Funding

The Commercial Court has clarified the limits on litigation privilege in the context of third-party funding. In Uber London Ltd & Ors v Garry White & Ors; Mishcon de Reya LLP [2026] EWHC 1610 (Comm), the court held that documents created while a funder investigated the merits of a claim in order to make a decision on funding would not be protected under litigation privilege, because their dominant purpose was to decide whether to fund the litigation, not the conduct of the litigation.

Background
The dispute involves more than 13,000 black cab drivers bringing claims against Uber for an alleged unlawful means of conspiracy, claiming Uber deliberately misled Transport for London to obtain a private hire operating license. The drivers claim they suffered a £340 million loss between 2012 and 2018.

In December 2017, Harbour retained solicitors Mishcon de Reya to investigate the viability of a claim against Uber, engaging with the Licensed Taxi Drivers' Association (LTDA) and its members. Individual claimants were not signed up to the group action until October 2018 onwards, with Harbour funding the early stages of the litigation until November 2019.

Uber is defending the claims against them on limitation grounds, arguing that they were brought too late and turning the question to when the drivers first knew, or reasonably should have known, about the wrongdoing. Uber applied for disclosure of the pre-October 2018 communications between Harbour, Mishcon de Reya, the LTDA and individual members (the “Harbour Communications”), arguing that they were relevant to the limitation issues because they could reveal what the potential claimants knew, or could reasonably have discovered, before the critical limitation date. The claimants resisted disclosure on grounds of relevance, privilege and control.

Limitations on litigation privilege
The court granted Uber’s disclosure application.

While it was accepted that legal advice privilege could cover communications between Mishcon de Reya and Harbour (its client) with the effect that those would not be disclosable, communications with third parties (here, the LTDA and individual members) could only be covered by litigation privilege if made for the sole or dominant purpose of conducting litigation in progress or in reasonable contemplation. While the decision by a claimant of whether to litigate is part of the conduct of litigation, the Court clarified that a funder’s decision whether to fund litigation is not equivalent to a claimant’s decision to pursue its own claim. Critically, what attracts litigation privilege is the dominant purpose for which the document is created or obtained, not merely that litigation was in contemplation or its creation in a litigation context.

The court found that the correspondence between Mishcon de Reya and the LTDA was not privileged as it was created to assess whether claims were worth funding, not for the conduct of the litigation itself. The correspondence therefore failed the dominant purpose test and was ordered to be disclosed.

Significance
This judgment was particular to its facts and is most relevant to claims originated by funders, who then find a suitable claimant to bring them. In those circumstances litigation privilege is unlikely to apply to protect communications with parties that are not the funder’s lawyers, and funders should be mindful that documents created during the claim-build process could potentially be disclosable.

In the more common situation where a claimant him or herself engages lawyers to advise on the claim, obtains relevant information from third parties him/herself and then approaches litigation funders, litigation privilege will usually be engaged.

However the judgment provides a worthwhile reminder to claimants and funders alike to ensure that their dealings and information flows are structured appropriately with proper legal advice. Similar considerations apply to the seeking of ATE insurance as stated in the judgment.[1]‍ ‍

Note: This is a general summary of an evolving field of law, and is made available for general discussion purposes only between CANDEY and its clients and prospective clients. This memorandum does not constitute legal advice and must not be relied on as such. It should also not be cited as legal or academic authority.

CANDEY is a boutique litigation law firm that has extensive experience and resources to evaluate and advise on litigation funding arrangements. We are keeping our eye on reforms in this area and are equipped to navigate the future of litigation funding, whatever shape it may take

[1] By reference to Winterthur Swiss Insurance Company v AG (Manchester) Ltd (In Liquidation) [2006] EWHC 839 (Comm)