Are boardroom communications about litigation private?
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Are boardroom communications about litigation private?
There is a concept in the law called “litigation privilege”.
This allows parties to investigate disputes without the risk of the other party being able to see the communications.
It covers documents including electronic communications (like email and voicemail) and traditional communications like Board Minutes and handwritten notes. It covers documents which have been produced to obtain information or advice for existing or prospective litigation.
The communication must be for the “sole or dominant purpose of conducting the litigation”.
The leading case on the subject recently has been the litigation between the landlord of West Ham’s Olympic Stadium ground, E20 Stadium LLP and West Ham Football Club over the number of seats West Ham were contractually permitted to use.
There were emails exchanged between members of the Board and other stakeholders discussing proposals for settlement of the dispute and the court had to decide whether privilege extended to documents whose aim was to avoid or settle litigation rather than conducting litigation and which were not seeking advice or information on the case.
The Court of Appeal decided that conducting litigation could include considering settling or avoiding litigation, but the documents must seek advice or information as well and not just be commercial discussions.
The landlord also tried to argue that all internal communications on the subject would be automatically privileged in a corporate body because they were confidential. The court decided that there was no blanket privilege for corporate communications.
The key “takeaway” point from this case is that privilege can attach to settlement discussions taken by the Board but only if they cannot be “disentangled” from communications seeking advice or information on the litigation. Therefore Board Minutes and Board communications should be carefully worded to ensure that there is either no record of settlement discussions or that they are bound up with other discussions seeking advice or information for the purposes of the litigation.
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