In a recent decision, the High Court has found that a pre-action letter sent by the claimant to a third party, and the third party’s response, were subject to litigation privilege, overturning the decision of the Master who had found that privilege did not apply. The court was satisfied that the true purpose of the correspondence was to obtain information for the present proceedings, and therefore the dominant purpose test was met: Ahuja Investments Ltd v Victorygame Ltd  EWHC 1543 (Ch).
The court found that, in considering the dominant purpose test for litigation privilege, the authorities establish that it is the person who instigated the communication or document whose purpose is relevant, whether that is the author or some other person. While the purpose must be determined objectively, that simply means that the decision is one for the court rather than the parties, and in fact the court will take into account the subjective intentions of the instigator. Accordingly, it was the claimant’s purpose in sending the (purported) pre-action letter that mattered, not the third party’s purpose in providing its response.
The decision contrasts with Property Alliance Group v The Royal Bank of Scotland Plc (No. 3)  EWHC 3341 (Ch) (“PAG“) (considered here), in which Birss J held that, in circumstances where witnesses had been deceived as to the purpose of a meeting, it was only fair to assess the dominant purpose from the witnesses’ perspective. In the present case, the deputy judge suggested that PAG should be confined to its unusual facts, where a witness was led to believe that the purpose of a meeting was other than to collect information. Here the deception related to the purpose of documents rather than a meeting, and the third party was aware that information was being sought, though not its true purpose.
While this decision suggests that a party may be able to claim litigation privilege despite having deceived a third party as to the purpose for which information is sought, there are some fine distinctions between this decision and the decision in PAG, and it is not clear how the court is likely to approach such questions in any given situation in the future. It is also worth noting that the court made clear that it did not condone the claimant’s conduct in misleading the third party as to the purpose of the correspondence.
The underlying claim is for damages in respect of alleged misrepresentations in the context of a property transaction. An important issue in the case is what the claimant’s solicitor at the time, Mr Jandu of Stradbrooks, knew and what he told the claimant.
The defendant disputed the claimant’s claim to litigation privilege in respect of two documents: (i) a letter of claim written by the claimant’s current solicitors to Stradbrooks under the pre-action protocol for professional negligence; and (ii) Stradbrooks’ insurer’s response to that letter.
The claimant’s solicitor (Mr Davies) gave a witness statement which explained that the dominant purpose of sending the letter of claim was to obtain information relevant to the current proceedings, as it was thought that Mr Jandu would not give any substantive comment on relevant matters unless he was threatened with proceedings. The claimant’s case was that, accordingly, the correspondence met the dominant purpose test for litigation privilege.
Master Pester held that the documents were not covered by litigation privilege, relying on the decision in PAG. The Master thought PAG could be distinguished factually, as he did not consider there to have been deception on the claimant’s part in this case. However, he considered that, as in PAG, in determining the dominant purpose of the correspondence, he should look not only at the claimant’s intention but also how the correspondence would have been seen from the point of view of Mr Jandu and Stradbrooks’ insurers.
The claimant appealed.
The High Court (Robin Vos sitting as a deputy judge) allowed the appeal and upheld the claim to privilege.
He said it was clear from the authorities, including the Australian case of Grant v Downs (1976) 135 CLR 674 and the Court of Appeal decision in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership  WLR 1027 that, in considering the dominant purpose test, the relevant purpose is that of the person who instigated the document in question, which may be its author or some other person.
That person’s purpose must be determined objectively, in the sense that the decision is for the court not the parties. The decision must be based on all of the evidence, including the subjective intention of the instigator.
Having considered the evidence in this case, including Mr Davies’s evidence referred to above, the deputy judge concluded that the claimant’s dominant purpose in bringing the correspondence into existence was to obtain information for use in the current proceedings.
He then went on to consider whether there was any deception on the claimant’s part and found that, while there was no deception in relation to the fact that information was being requested, as in PAG, there clearly was an element of deception as regards the purpose for which the information was requested. However, it did not follow that a claim to privilege could not succeed.
The deputy judge noted that, as had been assumed (but not decided) in other first instance decisions to which he had been referred, there might be a principle which would prevent a claim to privilege where the other party to the litigation is induced to provide information which they would not have provided had they known the true purpose of the request (which had been deliberately concealed). However, he declined to find that there is in fact such a principle and to extend it to situations involving third parties rather than the opponent in the litigation.
Whilst he said he did “not condone the tactics used in this case”, since the dominant purpose of the correspondence was in fact to obtain information for the purposes of these proceedings, there was in his view “no principled reason why the protection of privilege should not be available in relation to that information”.
The deputy judge noted that, in light of the previous authorities to the effect that the relevant purpose is that of the instigator of the material, Birss J’s decision in PAG must be confined to its unusual facts which relate to the purpose of a meeting rather than the purpose of documents, and where the deception was as to whether the purpose of the meeting was to collect any information at all, rather than the purpose for which information would be used.
He noted that he had not been asked to consider whether privilege was unavailable as a result of the deception giving rise to some sort of estoppel or waiver, though he did not think such an argument would succeed on the facts.
Finally, the deputy judge rejected an argument that the correspondence could not be privileged as it was not confidential. He held that both the claimant and Stradbrooks would have considered the correspondence to be confidential as far as third parties (such as the defendants) were concerned. The fact that it was not confidential as between the claimant and Stradbrooks and therefore would not be privileged in litigation between them did not prevent the claimant from maintaining a claim to privilege in these proceedings.