The Dekagram: 22nd June 2026

This week Sarah Prager KC considers a recent case on legal professional privilege, and asks whether the government is moving quickly enough to deal with high-risk cosmetic procedures such as Brazilian butt lifts, notorious to litigators as carrying a significant risk of complications including fatalities.

Litigation Privilege in Pre-Litigated Cases: White v Uber London Ltd, unreported, 12^th June 2026, Birt J

Readers will be aware of course that documents covered by litigation privilege – documents created for the purposes of litigation – are not disclosable, enabling clients and their representatives to be open and honest with each other as regards such matters as prospects of succeed and valuation of the claim.

In the case of White v Uber London Limited the limits of this privilege were tested.

The Facts

The claimants were black cab drivers who brought proceedings against the first defendant (D1), a licensed private hire operator, and other companies within the same group, alleging that they had caused the claimants loss by an unlawful means conspiracy over a period between mid-2012 and March 2018. It was said that but for the alleged conspiracy, D1 would not have obtained a private hire operator licence and would not have competed with the claimants for the provision of private hire journeys in London. The damages claimed were very substantial indeed.

The claimants’ solicitors had been approached by a litigation funder, H, at the end of 2017 to investigate the possibility of a claim against D1; the solicitors contacted the cab drivers trade association (LTDA) and opened a file in H’s name. On October 2018 the claimants duly retained the solicitors to act for them; H provided litigation funding for the early stages of the claim, including the first letter before action, but declined to provide further funding from November 2019

The claim was commenced in 2024, more than six years after the end of the relevant period for the claim and the defendants alleged that it was statute-barred. The claimants relied on s.32 of the Limitation Act 1980 and said that they did not discover, and could not reasonably have discovered, the alleged fraud or concealment until a reasonable period of time after dates in June 2018 when the magistrates’ court heard an appeal against a decision not to renew D1’s licence.

The High Court directed that limitation should be tried as a preliminary issue. The defendants sought disclosure of correspondence between the solicitors and H and others up to October 2018 in connection with a potential claim against the defendants, as being relevant to the limitation issue. The claimants refused to provide this disclosure on the basis that it was irrelevant and was covered by litigation privilege.

The defendants then applied for disclosure of certain documents passing between the claimants’ solicitors and the litigation funder (H) and others, before the solicitors were retained by the claimants.

The Outcome

The court granted the application.

Relevance – The documents sought satisfied the test of relevance under PD 57AD para.17 and para.18 and/or r.31.17. The documents concerned investigations by H, the LTDA, some of its members, and the claimants’ solicitors into the possibility of a claim against the defendants. Those parties were directly involved in the litigation. What the solicitors and H had in fact discovered in that period was clearly relevant to the issue of what the claimants might reasonably have discovered.

Privilege – It was accepted that some documents would be covered by legal advice privilege and that litigation was in contemplation for the purposes of litigation privilege. However, litigation privilege would only apply if the communications had been made for the sole or dominant purpose of conducting the litigation, Three Rivers DC v Bank of England [2004] UKHL 48, [2005] 1 A.C. 610, [2004] 11 WLUK 298 followed. Litigation privilege could, in principle, be claimed by a non-party to litigation, subject to the dominant purpose test, Al Sadeq v Dechert LLP [2024] EWCA Civ 28, [2024] K.B. 1038, [2024] 1 WLUK 257 applied. Conducting litigation included deciding whether to litigate, WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652, [2018] 11 WLUK 511 considered. However, H was not deciding whether to litigate itself but whether to fund the instant proceedings. It followed that communications with H failed the dominant purpose test and litigation privilege was not available.

Control – The documents were in the claimants’ control for the purposes of disclosure. They were in the physical possession of the claimants’ solicitors, who were the claimants’ agents. If the solicitors owed a duty of confidentiality to H, they also owed a duty to the claimants to disclose to them everything that was or might be material to the claim. There had been no suggestion that that information could not and would not be used and the claimants had not given any informed consent to that effect.

Reasonable and proportionate – It was reasonable and proportionate to require disclosure, subject to questions of privilege, of the communications with H and others which were relevant to the limitation issue because they were capable of showing what individual cab drivers, not just the claimants, knew or could reasonably have discovered before October 2018.

Comment

It seems to the author that this decision was a triumph of pragmatism. Although at first sight it may be surprising that correspondence passing between a solicitor and a potential litigation funder should be disclosable, the particular circumstances of this case rendered the documents invaluable in considering the limitation defence. It would have been surprising if the court had allowed the claimants to argue that they had no means of knowing that they had a potential claim, when all along the documents might show that they were aware of the claim prior to the expiry of the limitation period.

The decision is however another in a string of cases relating to the operation of legal professional privilege which emphasise that that the doctrine has in the past been interpreted too widely and as an all-purpose reason for failing to disclose documents. In every case where legal professional privilege may be relevant it is necessary for the documents in question to be considered carefully and in the light of the particular issues raised at that time. It will no longer do for parties simply to rely on the fact that the documents consist of correspondence relevant to the claim passing between parties on one particular side of proceedings.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.

High Risk Cosmetic Treatments: Is the Legislature Moving Fast Enough?

It must be acknowledged that the government has had a lot on its plate lately. But whilst the leadership psychodrama continues, so too should the humdrum business of governing. Regular readers will recall that the Women and Equalities Committee (WEC) has been pressing for dangerous cosmetic procedures such as liquid Brazilian butt lifts to be banned, and for the introduction of a compulsory licensing system for non-surgical cosmetic treatments such as the administration of fillers. The Health Minister was due to respond to the WEC report on cosmetic procedures by 18^th April 2025; that response has now been received, in the form of a letter from Health Minister Karin Smyth. Ms Smyth wrote:

I can confirm that we plan to consult on draft regulations in June.

Our intention is to issue a formal government response to the WEC report, once our consultation setting out our proposed approach and underpinning legislation is published.

 I acknowledge the concerns around the government’s pace of delivery in this area but, as you will appreciate, this is a complex area of policy and striking the balance between increased patient safety, placing new requirements on businesses and introducing proportionate and enforceable regulation is challenging.

I recognise that regulation has not kept pace with the expansion of the aesthetics industry and, on that basis, I can assure you that we are committed to implementing licensing in the current parliament.

Our full response to the Committee’s report will set out our plans in more detail, along with updates on our work around PIP breast implants and medical tourism.

The Committee had previously called for an immediate ban on high harm procedures without further consultation, and suffice to say that the Chair, Sarah Owen MP, has described the planned delay as unacceptable. The WEC argues that slow progress on both banning dangerous procedures and introducing a licensing system for non‑surgical cosmetic treatments is allowing unsafe practices to continue and fostering complacency in the industry, but it doesn’t look as if anything is going to change any time soon.

Comment

The tenor of the Minister’s response will be familiar to all those who were brought up watching Yes, Minister and Yes, Prime Minister and will recall Sir Humphrey Appleby’s maxim that it takes longer to do things quickly; it is more expensive to do them cheaply; and it is more democratic to do them in secret.

Essentially, it is agreed by all that dangerous treatments should be dealt with, but not yet. Only when the time is right and the moment opportune. At some future juncture. After careful consideration.

At Deka Chambers this is a subject close to our hearts because we have dealt with the aftermath of botched cosmetic treatments provided both within the UK and abroad, including a number of tragic fatalities. As indeed the NHS continues to do; there is significant concern amongst reputable reconstructive surgeons that attempting to put right what has gone wrong is costly in both human and financial terms. And yet it does not appear that there is the political will to legislate accordingly.

At a recent ABTA conference the author was interested to attend a presentation on travel for the purposes of medical treatment (woe betide us if we call it ‘medical tourism’, as the Minister does) given by our friends Krystene Bousfield of Travlaw and Alex Carington of 12kbw.  It does seem that this is a growth area, both inbound and outbound, and as such we look forward to the industry being properly governed. In the meantime consumers may fall back on the general provisions relating to consumer protection, including the Consumer Rights Act 2015, the Consumer Protection Act 1987, s.75 of the Consumer Credit Act 1974, and, perhaps more controversially the Package Travel and Linked Travel Arrangements Regulations 2018.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel and personal injury law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.