White & Ors v Uber: Commercial Court rejects claim to litigation privilege over funders’ initial assessment of a claim

On 11 June 2026, Mr Justice Birt granted the Defendants’ expedited application for disclosure of certain documents relating to a litigation funder’s assessment of the claim against them: [2026] EWHC 1610 (Comm).

This issue arose in the context of ongoing proceedings in which more than 13,000 black cab drivers and the owner of two minicab businesses bring claims against Uber London Limited and other entities in the Uber group (referred to collectively as “Uber”) for an alleged unlawful means conspiracy. Uber denies the claim in its entirety, including on the basis that the claims are out of time. In that context, the Claimants rely on s.32 of the Limitation Act 1980, contending that time did not start to run until a reasonable period of time after 25 and 26 June 2018. At the first CMC in October 2025, O’Farrell J ordered that this issue be tried by way of a preliminary issue.

In December 2017 (before 25 and 26 June 2018) Harbour approached Mishcon de Reya LLP to investigate a potential claim against Uber and Mishcon de Reya subsequently approached the Licensed Taxi Drivers Association (the “LTDA”) (a trade association whose members include many of the Claimants in the action). Harbour subsequently agreed to fund the initial phases of the claim and Mishcon de Reya have represented the Claimants throughout the proceedings.

Uber applied for disclosure of communications between Harbour, Mishcon de Reya, the LTDA and any individual drivers (the “Harbour Communications”) on the basis that such communications were relevant to the preliminary issue since they showed that the claim was reasonably discoverable before 25 and 26 June 2018 (having been the subject of an investigation by the parties to the Harbour Communications from December 2017).

The Claimants resisted the application on the basis that the documents were: (i) irrelevant; (ii) not within their control; (iii) privileged; and (iv) that disclosure would be disproportionate. In response to the second argument relating to control, Uber applied in the alternative for third party disclosure from Mishcon de Reya.

Following a one-day hearing on 9 June 2026, Birt J granted the application and ordered the Claimants to conduct a further disclosure exercise focussing on documents within the Harbour Communications that concerned the knowledge of individual drivers. The Court held as follows:

1. The documents were relevant to the preliminary issue under s.32 because some individual black cab drivers were in fact involved in communications between Mishcon de Reya and the LTDA and, in any event, what was discovered during the initial investigation by Mishcon de Reya and Harbour could be relevant to the question whether the claims were reasonably discoverable under s.32 (§§16-31).
   
   
2. The documents were not subject to litigation privilege (§§32-61). During the period of the Harbour Communications, there was a solicitor client relationship between Harbour and Mishcon de Reya. No individual black cab claimant had by that stage been signed up for the claim. However, since legal advice privilege does not generally attach to communications with a third party (such as the LTDA or black cab drivers), those documents could only be withheld if they were subject to litigation privilege. In that regard, the Court applied the established test whether the documents were created for the dominant purpose of the conduct of the litigation: see WH Holding Ltd v. E20 Stadium LLP [2018] EWCA Civ 2652, §§17 and 27. However, on the evidence before the Court, the dominant purpose of the Harbour Communications was to enable Harbour to decide whether or not to fund the claim. The dominant purpose test was not satisfied and the claim to litigation privilege was rejected.
   
   
3. The documents were within the control of the Claimants because Mishcon de Reya owed the Claimants a fiduciary duty to disclose all material that was relevant to their claim, and the Claimants had not given their informed consent to the contrary. In this context, the Court noted that a solicitor owes their client a duty to disclose material information even if that information is confidential to another client and that the Claimants would reasonably have expected that Mishcon de Reya would use the product of their initial investigation in the subsequent pursuit of their claims (§§62-83).
   
   
4. The Court held that disclosure was reasonable and proportionate. The Claimants were responsible for the application being made on an urgent basis shortly before trial (§§84-100).
   
   

The Court’s judgment is significant for those who are involved in funded claims where limitation is often an issue. The initial investigation of such claims with a view to deciding whether or not they should be funded may generate relevant documents that are within the future claimants’ control and that cannot be withheld on the grounds of litigation privilege.

Sonia Tolaney KC and Michael Watkins acted for Uber, instructed by Herbert Smith Freehills Kramer LLP.

Alain Choo-Choy KC acted for the Claimants, instructed by Mishcon de Reya LLP.