The High Court has ruled that a litigant’s legal documents must remain privileged despite it being accepted they were part of an information-gathering deception.
in Ahuja Investments Ltd v Victorygame Ltd & Ors, Robin Vos, sitting as a deputy judge of the Chancery Division, concluded that the documents were related to the main litigation and did not have to be disclosed.
The court heard that claimant Ahuja’s solicitors, Cardium Law Limited, had written a letter of claim in February last year to another law firm, Stradbrooks, under the pre-action protocol for professional negligence. A second document was sent last December as a response from Stradbrooks’ insurers.
Ahuja admitted to the court that the real purpose of the correspondence was to elicit information to be used in proceedings in respect of misrepresentations alleged against the defendants in the main litigation.
Those defendants had applied to the court for disclosure of any correspondence relating to a potential claim over professional negligence. Master Pester had agreed the documents should be disclosed, saying the claim for litigation privilege was not made out, and focusing on how the correspondence would have been seen by Stradbrooks and its insurers.
On appeal, Ahuja’s lawyers argued that despite the letter of claim being sent under the professional negligence pre-action protocol, the only purpose was for obtaining information to use in proceedings against the defendants in the main litigation. It was submitted that Stradbrooks would not have been misled by the form of the request, given that the correspondence referred to the main litigation, and the firm must have known that any information provided would have been relevant to those proceedings.
The judge said that the dominant purpose of Ahuja bringing the correspondence into existence was to obtain information in the current proceedings. While he did not condone the tactics used in the case, there was no principled reason why the protection of privilege should not be available.
He added: ‘Although there was an element of deception as to the purpose of the correspondence, this does not prevent Ahuja from claiming privilege in relation to the documents as the dominant purpose of the correspondence was to obtain information in relation to these proceedings.’ He added that this conclusion was not altered by the fact that Stradbrooks or its insurers may have been misled as to the purpose for which the information was being sought.’
The appeal against Master Pester’s order was allowed and the privilege claim found to have succeeded.