In the recent case of Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm) the English Commercial Court rejected a claim to litigation privilege over preliminary investigations conducted by a party appointed expert on the basis that litigation in respect of the matter being investigated was not in reasonable prospect at the relevant time. However, the court also held that there was no waiver (or a wider collateral waiver) of privilege in respect of documents relating to how the mispricing claim was discovered (including the expert’s investigations) by the claimant’s solicitor having referred to them in a witness statement.

Litigation privilege applies to confidential documents or communications where at the time the communication or document was created litigation was in reasonable prospect; and it was created for the dominant purpose of the litigation.