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Disclosure, privilege and evidence — SQE1 DR question

A worked single-best-answer question on disclosure, privilege and evidence, with why each wrong option is wrong — the way SQE1 traps candidates.

Disclosure, privilege and evidence

A fire destroyed stock at a warehouse owned by Tarrant Ltd. The next day, anticipating a claim against the electrical contractor it blamed, Tarrant instructed an independent fire engineer to investigate. The engineer's report was obtained for the dominant purpose of supporting that anticipated claim. Proceedings are now on foot and the court has ordered standard disclosure. The report contains material helpful to the contractor.

Which of the following best describes Tarrant's obligations regarding the report?

  1. ATarrant need not mention the report at all in its list of documents, because privileged documents are outside disclosure.
  2. BTarrant may withhold the report under legal advice privilege, because it was obtained for the purposes of the case.
  3. CTarrant must allow inspection of the report, because only communications between a client and its lawyer are privileged.
  4. DTarrant must disclose the report in its list, but may withhold it from inspection under litigation privilege.
  5. ETarrant may withhold the report only if it was prepared after proceedings were issued.
Show answer and reasoning
D is the best answer. Litigation privilege protects communications between a party (or its lawyer) and third parties made for the dominant purpose of reasonably contemplated litigation (Waugh v British Railways Board). A privileged document that falls within standard disclosure must still be disclosed in the list, but the party may withhold inspection of it, stating the claim to privilege (CPR 31.3(1)(b), 31.19).

Rule: A third-party report obtained for the dominant purpose of reasonably contemplated litigation is protected by litigation privilege: it must be listed but may be withheld from inspection.

  • A Disclosure means stating that a document exists; privilege is a ground for withholding inspection, not for omitting the document from the list. (wrong rule)
  • B Legal advice privilege covers lawyer–client communications for the purpose of legal advice, not reports from third parties. (wrong rule)
  • C Communications with third parties are protected by litigation privilege where the dominant purpose test is met. (wrong rule)
  • E Litigation need only be reasonably in contemplation; it need not have begun. (wrong rule)

Source: CPR 31.2, 31.3(1)(b), 31.6 and 31.19; Waugh v British Railways Board [1980] AC 521

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