In a judgment handed down on 30 July 2021 (the “Judgment”), the Commercial Court considered, in the context of high profile allegations of conspiracy brought by Qatar, whether litigation privilege applied to areport prepared by a financial advisor, PricewaterhouseCoopers (“PwC”). The Court found that, at the time PwC was instructed, there was little evidence to suggest that adversarial proceedings were reasonably in contemplation. The evidence of the First Defendant, Banque Havilland SA (the “Bank”), to the contrary had been too general and, while there were a number of purposes behind PwC’s instruction, the dominant purpose was not anticipated litigation.
Overall, the Judgment is an important reminder of the strict requirements of litigation privilege and the difficulties for any party seeking to rely on this privilege to protect an investigation report in the absence of anticipated or current litigation (or similarly adversarial proceedings), and/or where the report was not commissioned for the sole or dominant purpose of such litigation.
