Privilege and Evidence Gathering: Where are the Courts Drawing the Line?

Litigation often turns on the information available to the parties. The three decisions discussed in this article illustrate the courts' continuing focus on the integrity of the processes of obtaining and using information in evidence. In these recent cases, the courts consider issues of privilege, control of documents and the proper boundaries of acceptable evidence-gathering. Together, the cases provide important reminders that in litigation, the manner in which information is gathered and handled can be just as important as the information itself.

Litigation in contemplation does not guarantee privilege

In Uber London Ltd v White [2026] EWHC 1610 (Comm), the Commercial Court considered whether documents created during a litigation funder's investigation of a potential claim were protected by legal professional privilege. The court accepted that certain communications between the funder and its solicitors were covered by legal advice privilege because a solicitor-client relationship existed between them. However, the court rejected the argument that the wider body of communications attracted litigation privilege.

The fact that litigation was in contemplation was not sufficient on its own. Litigation privilege applies only where communications are created for the sole or dominant purpose of conducting litigation. The court accepted that litigation privilege can, in principle, be claimed by a non-party, including a litigation funder but here the relevant communications had been created primarily to enable the funder to decide whether to fund the claim. The court distinguished between a party's decision whether or not to pursue litigation and a funder's decision whether to finance another person's claim. 

The decision is a reminder that courts continue to scrutinise the purpose for which documents are created. It should not be assumed that communications involving litigation funders, claims vehicles and other third parties will attract litigation privilege. Where documents are created primarily to evaluate or support funding decisions, rather than for the conduct of the litigation itself, litigation privilege may not apply, even where litigation is already contemplated. Legal advice privilege may nevertheless apply where the necessary solicitor-client relationship exists.

The case also highlights the potentially broad approach the courts may take to "control" for disclosure purposes. Documents generated during the funder-led investigation phase were held to be within the claimants' control because they were in the possession of the solicitors who then acted for the claimants in the proceedings. The court rejected the argument that the documents remained solely within the funder's control and held that the claimants were entitled to information held by their solicitors which was material to their claims.

Legitimate investigation or impermissible conduct?

In Bourlakova v Anufriev [2026] EWHC 1747 (Ch), the court considered whether legal professional privilege had been lost under the iniquity exception. The claimants had instructed private investigators who allegedly obtained confidential and privileged information during a long running dispute concerning assets said to exceed US$3 billion in value. The defendants argued that the claimants' evidence-gathering activities were sufficiently improper to prevent privilege from attaching to communications with their lawyers and investigators and sought declarations from the court in this regard.

Richards J rejected the defendants' argument. He held that it is not inherently iniquitous for a litigant to instruct investigators to obtain confidential information without the other side's consent. Richards J considered that a blanket rule, such as that put forward by the defendants, "would risk having a chilling effect on the ability of claimants to obtain evidence in cases of suspected fraud". The court therefore rejected the suggestion that the mere pursuit of confidential information, or the fact that investigators ultimately obtained such material, was enough to engage the iniquity exception.

A significant factor was the court's finding that the claimants and their solicitors believed the investigations were being conducted lawfully and did not set out to obtain privileged material. Once concerns arose that privileged communications might have been obtained, independent counsel had been instructed to screen the potentially privileged documents so that they were not passed to the claimants or their legal team. The judge also accepted that the claimants believed information was being obtained from a whistleblower rather than through unlawful hacking.

The practical takeaway here is that the use of private investigators is not objectionable in itself and will not, without more, trigger the iniquity exception. However, parties engaging investigators should ensure there is appropriate oversight, clear instructions as to lawful conduct and robust procedures for identifying potentially privileged material.

The consequences of “privilege hunting”

If the Bourlakova decision demonstrates how robust investigations can remain within acceptable boundaries, Pliego and another v Astor Asset Management 3 Ltd and others [2026] EWCA Civ 940 demonstrates where the line has been crossed.

The claimants retained Black Cube, a private intelligence firm, to conduct a covert operation targeting the defendants' solicitor. Through an elaborate cover story, Black Cube operatives induced the solicitor to disclose confidential and privileged information about the defendants' case, including litigation strategy, the impact of freezing orders and perceived weaknesses in the defence. The meetings were secretly recorded and the resulting material was later relied on in support of a summary judgment application. 

The Court of Appeal held that this conduct was a serious abuse of process and that "privilege hunting" has no place in litigation in England and Wales. It rejected arguments that the solicitor's own failings diminished the seriousness of the conduct; exploiting the solicitor's vulnerability was the very purpose of the operation. 

However, the court declined to hold that privilege hunting will automatically result in a claim being struck out. It reaffirmed that the court's response to abuse must protect the integrity of the judicial process rather than punish wrongdoing and that striking out remains a remedy of last resort.

On the facts, the abuse had a substantial impact on the proceedings, disrupting the defendants' relationship with their solicitors, increasing costs and delay, and providing the claimants with valuable tactical insights. The Court of Appeal therefore upheld the strike out of the claimants' summary judgment application and discharged the freezing orders but allowed the underlying claim to proceed to trial.

What does this mean in practice?

Taken together, these decisions demonstrate the court's continuing focus on the proper handling of information throughout the litigation process. Whether the issue is the availability of privilege, the legitimacy of evidence-gathering methods or the consequences of obtaining an opponent's confidential or privileged material, the courts are concerned with protecting the integrity of the litigation process while balancing proportionality and the interests of justice.