White v Uber London Ltd: A challenge to funded litigation privilege

Litigation funders would be forgiven for thinking that the headwinds created in the last few years were dissipating. The decision of the Supreme Court in PACCAR had clearly tested the industry, as had the failure of successive governments to follow through with promises to legislate to correct its impact, but reforms announced by the government in December 2025 suggest that a reversal is imminent, together with a lighter level of regulation for the industry than commentators had predicted.

However, it appears that the headwinds might not be completely over.

White v Uber London Ltd

In White v Uber London Ltd, the Court of Appeal held on 12 June 2026 that communications relating to litigation funding were not subject to litigation privilege (contrary to the view widely held by the market). As a result, litigants may be more cautious before approaching litigation funders for funding.

In the proceedings, Claimant black cab drivers and private-hire operators alleged an unlawful means conspiracy arising from Uber’s interactions with Transport for London to secure its private hire operating licence between 2012 and 2018. They’ve claimed £340 million and pursued the proceedings with the benefit of litigation funding (initially from Harbour Litigation Funding).

Uber are pursuing a limitation defence, in connection with which they sought disclosure of correspondence between Mishcon de Reya, who represent the Claimants, Harbour, and the Licenced Taxi Drivers Association, which was created when Mishcons were engaging with Harbour to investigate the potential claim.

The judgment

Pivotally, Birt J held that communications between a litigation funder and claimant solicitor firms – when the context of the communication concerns litigation funding decisions – were not necessarily covered by litigation privilege.

The court concluded that, in the present circumstances, the dominant purpose of the communications concerned whether to finance the litigation itself, rather than its conduct. The court confirmed that it is only the latter than attracts litigation privilege. The court accepted that some funder-solicitor communications might be privileged in other circumstances, but the decision to fund in itself is not privileged.

Ultimately, Mishcon de Reya have been ordered to review the matter documents and disclose any additional material relating to the knowledge of the individual drivers, subject to legal advice privilege.

In its decision, the court considered the following factors raised by the claimants to avoid disclosure:

Relevance
Privilege
Control of the documents
Whether it was reasonable and proportionate to require disclosure

Relevance

The documents that were sought to be disclosed satisfied the relevance test under Civil Procedure Rule 31.17 and/or Practice Direction 57AD, paragraphs 17 and 18.

Specifically, this outlines a failure to adequately comply with an order for Extended Disclosure, and varying an order for Extended Disclosure, as well as making an additional order for, or in relation to, disclosure-specific documents.

The court held that the period was clearly relevant to the issue of what the Claimants might reasonably have discovered, especially as the documents concerned investigations into the possibility of a claim against the defendants. The parties involved in the investigations were directly involved in the litigation.

Privilege

Uber accepted that some documents might be covered by legal advice privilege, if the Claimants established that litigation was in contemplation at the time of their creation. However, when considering those documents, it had to be evident that the document or communication was for the sole – or dominant – purpose of conducting the contemplated litigation. If so, litigation privilege could also arguably be claimed by a non-party to the litigation.

But, as the litigation funder was not deciding whether and how to conduct litigation but instead whether to fund it, it followed that the communications with the litigation funder failed the dominant purpose test. Therefore, documents and correspondence were not subject to litigation privilege.

Control

For the purposes of disclosure, the documents were also in the physical possession of the Claimant’s solicitors, who were acting as the agents on behalf of the Claimants. Thus, if the solicitors owed a duty of confidentiality to the litigation funder, they also owed a duty to the Claimants to disclose to them everything that may be material to the claim.

After the Claimant’s engaged the solicitors, they would have been surprised if there had been an obligation not to reveal what had been disclosed during the investigations. Further, there had been no suggestion that the information found during the investigations could not, and would not, be used. The Claimants also had not given any informed consent regarding this. As the Claimants controlled the documents, it was not necessary to consider the Rule 31.17 application.

Reasonable and proportionate

The court confirmed that, given the circumstances of the matter, it was reasonable and proportionate to require disclosure. However, this was subject to questions of privilege.

In deciding whether the documents were disclosable, the court found that the communications were directly relevant to the limitation issue as they showed what the individual cab drivers, not solely the Claimants, knew or could reasonably have discovered before October 2018.

Impact on the litigation funding sector

Lawyers may view the judgment as another example of the court’s pragmatic approach to disclosure. For litigation funders, it represents a far greater risk.

The judgment is nuanced. It arises from and highlights the unusual circumstances of the case. But inevitably, much of that nuance is lost in the headlines that have followed the judgment. The impression the headlines inevitably give is that correspondence with a litigation funder will not be protected by privilege. If that impression takes hold, litigants may be warier about approaching funders for funding.

There has always been some concern about the privilege status of correspondence with funders, but the market has generally operated on the assumption that, so long as the parties preserved confidentiality, privilege would endure. This judgment erodes that assumption.

Parties at the stage of early engagement with litigation funders will need to be deliberate about what they include in communications and be aware that they may not enjoy the protection of privilege.

This article was co-authored by Trainee Freya Kenny.

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