Clifford Chance

Hammering Litigation Privilege

17 December 2018

The Court of Appeal has decided that litigation privilege only applies to communications made for the purpose of obtaining information or advice in connection with litigation. In particular, it does not apply to "purely commercial" communications discussing a possible settlement of a dispute. This creates unwelcome confusion, especially so soon after the Court in ENRC had tried to make privilege more workable. But "entangling" commercial discussions with legal advice or with information obtained for the litigation may save the day.

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