Jul 2026
In a ruling of particular interest to litigation funders (Uber v White [2026] EWHC 1610 (Comm)), Mr Justice Birt in the English Commercial Court has recently determined that documents created during a litigation funder’s pre-funding investigation of potential claims do not attract litigation privilege. Further, it was held that documents were within the control of the relevant party (for the purposes of disclosure) as a result of its solicitors having been engaged by the funder at the time that the investigation took place.
The decision is likely to be of interest to litigation funders and BVI practitioners given the increasing number of funded claims in the BVI or involving BVI entities.
Background and Facts
The claims in White have been brought by certain individual black cab drivers and an assignee of two private hire companies against companies in the Uber group, alleging unlawful means conspiracy. A preliminary issue arose as to whether the claims were time-barred under the Limitation Act 1980, on the basis that (it was alleged) the claimants discovered or could with reasonable diligence have discovered the alleged fraud prior to 25 or 26 June 2018. A trial of that preliminary issue was listed to commence on 25 June 2026.
Crucially, in December 2017, before any claimant had been engaged, the litigation funder had retained a well-known firm of English solicitors to investigate the merits and quantum of potential claims. During that investigation, the firm of solicitors liaised with the Licensed Taxi Drivers’ Association (“LTDA”), whose members included many of the individual claimants. The solicitors opened a file in the funder’s name on 14 March 2018 and did not begin signing up individual claimant drivers until October 2018. The defendants sought disclosure of all documents generated during this pre-engagement period—including (among other documents) all correspondence between the solicitors and the funder and between the solicitors and the LTDA and its members.
Litigation Privilege
The parties accepted that legal advice privilege attached to communications between the solicitor and the funder, given the solicitor-client relationship that existed between them at the relevant time. The contested issue was whether litigation privilege also attached, particularly to communications with third parties such as the LTDA and individual drivers.
Applying Three Rivers (No. 6) [2005] 1 AC 610 and the English Court of Appeal’s summary in WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652, Mr Justice Birt noted that litigation privilege requires communications to have been made for the sole or dominant purpose of conducting litigation—not merely for any purpose related to litigation. Applying Excalibur Ventures LLC v Texas Keystone Inc [2012] EWHC 2176 (QB), the court confirmed that the terms on which a litigant secures funding do not engage litigation privilege.
On the facts, the court found that the dominant purpose of the relevant communications was to enable the funder to decide whether to fund the claims, not to conduct the litigation. The claimants argued that a funder’s decision whether to fund a claim was analogous to a prospective claimant’s decision whether to litigate, which WH Holding confirmed was part of the “conduct of litigation.” The court distinguished that decision on the basis that a funder’s investment decision was fundamentally different to a prospective claimant’s decision whether to litigate his own claim.
Control
On control of the relevant documents, the Court found that although the individual driver/claimants were not a client of the solicitors at the time that the communications in question took place, once they became clients the firm owed them a fiduciary duty to disclose all material information – including information acquired during the firm’s prior retainer with the funder – applying Hilton v Barker Booth & Eastwood [2005] 1 WLR 567. As such, the documents were within their control for the purposes of disclosure.
Key Takeaway
As indicated at the outset, this decision will be of interest to litigation funders and BVI practitioners. It underscores that litigation funders cannot assume blanket litigation privilege over pre-funding investigatory materials and highlights the importance of carefully structuring retainer and confidentiality arrangements where solicitors transition from acting for a funder to acting for a party to the litigation.
A copy of the decision can be downloaded here.