Briefing

Privilege and funder-led investigations: The rule in Uber v White

Of interest to all involved in litigation, and particularly the funding of claims, is the recent English Commercial Court case of Uber London Ltd and others v White and others [2026],¹ in which Birt J ordered disclosure of material generated during a funder-led investigation into potential claims against Uber (the Harbour Investigation).

The decision is a reminder that the application of litigation privilege depends on the dominant purpose for which a document is created being the litigation, and not, as was the case here, an assessment of whether the claim is worthy of funding.

The judgment is particularly relevant to funded claims, group litigation, and pre-action investigations involving funders, trade associations, claims management intermediaries or other non-party stakeholders. The result is a compact, but important judgment on how privilege should be analysed where funding diligence and litigation strategy overlap.

The court also addressed legal advice privilege, control, informed consent, and the adequacy of privilege explanations in disclosure certificates.

Background

The underlying claims were brought by approximately 13,000 black cab drivers, together with an assignee of two private hire vehicle companies, against three Uber group entities. The Claimants alleged unlawful means conspiracy and losses exceeding £340 million. Uber denied the claims, including on limitation grounds.

The immediate issue was disclosure ahead of a preliminary trial on limitation: whether the Claimants discovered, or could with reasonable diligence have discovered, the alleged wrongdoing before late June 2018.

Before the Claimants had instructed Mishcon de Reya (MDR), litigation funder Harbour retained MDR in December 2017 to investigate a potential claim. MDR also engaged with the Licensed Taxi Drivers’ Association (LTDA), whose members included many later Claimants.

Uber sought disclosure of the resulting communications between Harbour, MDR, the LTDA, and individual drivers. The Claimants and MDR resisted disclosure on the grounds of relevance, privilege, control, and proportionality.

Birt J held that the Harbour Investigation material was likely to contain relevant documents. Communications involving the LTDA and individual drivers could be relevant to what the Claimants knew before the limitation cut-off. Material showing what MDR and Harbour had discovered could also shed light on what information was reasonably discoverable.

Litigation privilege: Funding assessment is not the same as the conduct of litigation

The key privilege issue was whether the Harbour Investigation communications and materials were created for the dominant purpose of conducting litigation, as narrowly prescribed in Three Rivers DC v Bank of England (No. 6)². Birt J held that they were not. The evidence showed that the dominant purpose was to enable Harbour to decide whether to fund the claims. That distinction was decisive. A claimant’s decision whether to pursue its own claim may form part of the conduct of litigation. A funder’s decision whether to finance a claim is a commercial investment decision, even where the assessment involves merits, quantum, and litigation risk.

The court accepted that a non-party, including a funder, can in principle claim litigation privilege. However, the dominant purpose test must still be satisfied. Documents do not become privileged simply because they concern contemplated litigation or discuss legal merits. The court will ask why the document was brought into existence.

On the facts of this case, it was clear that the answer was funding diligence, not the conduct of litigation. Litigation privilege therefore did not attach to the Harbour Investigation.

Legal advice privilege: Protected, but only within the retainer

Legal advice privilege is a different consideration. Harbour was MDR’s client, under the relevant retainer, so qualifying communications between MDR and Harbour for the purpose of giving or receiving legal advice were protected. However, that privilege did not extend to communications with third parties, including the LTDA or individual drivers, unless they merely conveyed the privileged advice.

The judgment underlines the importance of identifying the client for privilege purposes at the outset of any pre-action investigation, especially where funders, intermediaries, trade associations or potential claimants are involved.

Control and informed consent

The Claimants argued that the documents were not within their control because they had been generated under Harbour’s retainer with MDR. However, Birt J rejected that submission and held that once MDR acted for the Claimants, its duty to communicate material information to them meant that information relevant to their claims was within their control for disclosure purposes, unless the Claimants had given valid informed consent to MDR withholding it.

The court took a practical view: solicitors who investigate potential claims against Uber for a funder could not realistically put that knowledge to one side when later acting for the Claimants bringing those claims.

The alleged informed consent was also insufficient. The Respondents relied on a 2024 retainer clause made available through an online portal, but the evidence did not show that the Claimants had knowingly agreed to give up existing rights to material information about their claims. The clause was also held to be too unclear to amount to informed consent.

Disclosure practice

The court was also critical of the privilege explanation in the Disclosure Certificate. It did not identify the type of privilege asserted, the documents or classes withheld, or the basis for the claim. A party must explain the right to withhold inspection with sufficient particularity.

Practical implications

Uber v White is not to be viewed as abolishing privilege for funders.

It is a case about purpose. Communications concerning funding may be privileged where the relevant test is satisfied, but privilege will not attach merely because the documents discuss litigation or were created against the backdrop of contemplated proceedings. The test requires the dominant purpose to be for litigation.

The decision is likely to matter most in group claims and funded litigation structures where solicitors first act for a funder and later act for claimants. In that context, early investigations may be relevant, within the claimants’ control, and vulnerable to disclosure if created for funding assessment rather than the conduct of litigation.

The practical lessons are clear: define the client as required by the Three Rivers case; separate legal advice from funding diligence where possible; record the purpose of key documents; manage any transition from funder retainer to claimant retainer carefully; obtain genuinely informed consent before withholding material information from later clients; and particularise privilege claims properly in disclosure.

Footnotes