White v Uber: The Finale? Your funder’s file may not be as private as you think, and it matters

What happened?

Black cab drivers, and the assignee of two private hire companies, sued Uber for unlawful means conspiracy, alleging that Uber obtained its London operator licence through fraudulent misrepresentation. Uber denied the claims. The claims were issued in 2024, after the primary six-year limitation period had expired, so the claimants relied on section 32 of the Limitation Act 1980 (fraud and deliberate concealment). A preliminary issue trial was listed to decide when the claimants discovered, or could with reasonable diligence have discovered, the alleged fraud.

The twist: before any driver had instructed them, the claimants’ solicitors had been engaged in December 2017 by litigation funder Harbour to investigate potential claims against Uber, including through discussions with the Licensed Taxi Drivers’ Association (LTDA). Uber sought disclosure of that “Harbour” material, arguing it would show what was known, and what was discoverable, before June 2018.

What did the court decide on disclosure?

• No litigation privilege. Litigation was in reasonable contemplation, but the evidence was that the dominant purpose of the work was to enable Harbour to decide whether to fund the claim. Deciding to fund someone else’s litigation is not the same as conducting it.
• Content is not the test. What matters is the purpose for which a document was created, not what it contains.
• Legal advice privilege has limits. Communications between the solicitors and Harbour (their client at the time) were likely protected by legal advice privilege, but communications with third parties such as the LTDA were not.
• Control? The file followed the clients. Once the drivers signed up, their solicitors owed them a duty to share material information about their claims, so the documents were within the claimants’ control for disclosure purposes.
• Boilerplate was not enough. A general confidentiality clause in a later retainer, uploaded to an online portal, did not amount to the claimants’ informed consent to give up their right to that information.

The ruling was given orally, around two weeks before the preliminary issue trial. A late-stage disclosure fight is exactly what no party wants.

The sequel: claims time-barred

On 19 October 2026, Birt J handed down judgment on the preliminary issue, [2026] EWHC 2651 (Comm), and dismissed the claims, brought by nearly 13,300 claimants, in their entirety as time-barred.

The decisive material was public: TfL’s September 2017 decision letter, published by the LTDA on 20 December 2017, together with other publicly available material, was enough to plead the claim, so the claimants did not need to wait for the licensing appeal in June 2018.

In short, the disclosed Harbour-era documents did not decide the case, but they filled in an unhelpful picture for the claimants.

What should Disputes clients take away?

The individual facts and the timeline will always be important – but here are some overarching principles to bear in mind:

1. Treat funder diligence as potentially disclosable. Case summaries, merits memos and quantum analyses prepared to secure funding or ATE cover may end up in your opponent’s hands. Write them as if the other side will read them.
2. Get the structure right from day one. Privilege turns on purpose. Where possible, the prospective claimant should instruct its own lawyers early, and the purpose of key documents (conducting the litigation) should be clear and recorded at the time.
3. Watch your third-party communications. Emails with trade bodies, witnesses, experts and other stakeholders are the weak point. If they are not created for the dominant purpose of conducting litigation, they are unlikely to be protected.
4. Be careful in limitation-sensitive claims. Where limitation is in play, early investigation material can become evidence of what was known or discoverable, and when. Think about this before the investigation begins, not after.
5. Read your retainer. If information from a lawyer’s earlier engagement is not to be shared with you, that needs your informed consent, not a generic clause. Equally, clients joining group actions should understand what material their lawyers already hold.
6. Defendants: ask the question. If a claim has been funded or investigated before issue, the investigation file may be a legitimate disclosure target. Raise it early.

Comment

White v Uber is not a revolution. It follows a consistent line of authority that distinguishes between conducting litigation and the commercial decisions that surround it. But with third-party funding now a routine feature of the disputes market, it is a timely reminder that privilege must be planned for, not assumed.

If you are considering a funded claim, facing one, or want a privilege health-check on an existing matter, please get in touch with our Disputes team.