To gain the protection of litigation privilege, a party must establish that when a document was created: (i) litigation was in reasonable prospect; and (ii) the document was prepared for the dominant purpose of that litigation. Recent decisions illustrate how both elements of this test are strictly applied.
Julian Copeman has published an article in the Solicitors Journal (8th July edition) which outlines the court's approach: “A privileged position”. Click here to download a PDF.
