HT-2022-000132 - [2025] EWHC 1058 (TCC)

There are a number of areas of common ground between the parties on the law.

The GC relies both on legal advice privilege and litigation privilege. At the risk of stating trite law, these concepts are encapsulated in Hollander on Documentary Evidence, 15^th ed at 13-02 as follows:

“Legal advice privilege is narrower in ambit but can be claimed more widely. It protects communications between client and lawyer which are part of the continuum of the giving and getting of legal advice. It does not require the existence or contemplation of legal proceedings. Litigation privilege only applies where adversarial proceedings are in reasonable contemplation, but it is wider in ambit. It protects communications which come into existence for the dominant purpose of gathering evidence for use in proceedings, and will include communications with third parties if they come into existence for that dominant purpose.”

For the avoidance of doubt, in this judgment, I also accept the submissions of the GC that:

A specific issue arose on this application in relation to limited waiver of privilege. I deal with this shortly because it has not been of great relevance in the decisions that I have reached.

The issue arose principally in the context of material shared by the GC with DCMS. As I have noted above, in correspondence, the GC initially relied on common interest privilege, sparking a debate as to its common interest with DCMS. The focus then shifted to limited waiver of privilege. The claimants sought to argue that this shift demonstrated that the GC did not itself know the basis on which it claimed privilege and/or did not properly understand the basis on which it had given or withheld disclosure, such that it was more likely that material shared with DCMS was disclosed deliberately, even if objectively a claim for privilege might otherwise have been asserted. I do not consider that a shift in the way in which the GC expressed its claims for privilege has any relevance. HL did no more than put the same point in different ways.

There is no real dispute between the parties that privileged communications can be shared confidentially with a third party without loss of privilege (USP Strategies plc, v London General Holdings Ltd. [2002] EWHC CH 373; Gotha City v Sothebys [1998] 1 WLR 114; and Jet2.com at [45].) A privileged communication may be shared without loss of confidentiality/ privilege and/or a privileged communication may be shared for a specified limited purpose. It is not necessary to state whether a privileged communication is being shared on such a basis and that may be inferred from the circumstances.

The relevance of Ms Dickey’s evidence as to the relationship with DCMS is that it goes to the inference that the claimants could be expected to draw when presented with privileged information shared with DCMS. As Ms Dickey sets out, the GC is accountable to DCMS and statutory provisions apply to the relationship between the GC and the Secretary of State under the Gambling Act 2005 and the National Lottery Act 1993. Funding for the National Lottery comes to the GC through DCMS and its budgets require DCMS approval. The Commission Framework Document (published on DCMS’s website) provides a requirement for updates from the GC to DCMS which encompasses timely reporting on litigation matters and “the protection of legally privileged information transmitted to DCMS to facilitate this”.