Challenging Privilege Claims and Documents Held by Consultants: Key Lessons

In Saudi Arabian Airlines Corporation v International Airfinance Corporation & Ors [2026] EWHC 2326 (Comm), the court made clear that simply because there was a "surprising and critical" absence of strategy documents which were expected to have existed does not necessarily mean there is anything wrong with that opponent's disclosure process or the assessment of legal privilege. Before asking the court to investigate further, there must be more than a general suspicion: see Crane Bank v DFCU Bank [2026] EWHC 522 (Comm), per Dame Clare Moulder at [15]-[16]. Even then, parties must act promptly in making the challenge, and it is likely that the court will only order further searches or reviews where it furthers the overriding objective, particularly when trial is imminent. The outcome was, however, very fact-specific, and each challenge will turn on its own circumstances.

Background 

Shortly before trial, the claimant sought further disclosure concerning claims arising from 49 aircraft leases. It argued that the "surprising and critical" absence of documents relating to the defendants' alleged strategy suggested that relevant material might have been incorrectly categorised as privileged due to the high number of documents for which privilege has been claimed but which did not appear to involve a lawyer. 

A disclosure challenge needs more than a disappointing document return

Under paragraph 17 of PD 57AD, an applicant must first show that there may have been a failure to adequately comply with an Extended Disclosure order (see Invest Bank PSC v El-Husseini [2024] EWHC 996 (Comm)). General suspicion is insufficient (see Crane Bank v DFCU Bank [2026] EWHC 522 (Comm)).  Whether non-compliance can be inferred will depend very much on the facts of each case. The court may draw that inference where, after a detailed disclosure exercise, documents of a particular type obviously must exist but have not been produced. Mere speculation that further documents ought to exist will not be enough.

Here, the court rejected the privilege challenge as a "logical non sequitur" i.e. it does not logically follow. The absence of documents supporting the claimant's alleged strategy did not justify an inference that privilege had been improperly claimed. There was no evidence of an inadequate review; indeed, communications involving the defendants' general counsel had been disclosed where the dominant purpose test was not met, suggesting that the review had been conscientiously undertaken.

The court also confirmed that there is no procedural requirement to identify in the disclosure schedule the particular head of legal professional privilege relied on for each document or class of documents. The absence of that information did not suggest that the privilege review had been improperly conducted. 

The closer the trial date, the harder it may be to justify further review

Even if there are grounds for the court to intervene under paragraph 17 of PD 57AD, that does not automatically mean further disclosure will be ordered. Here, the court was not prepared to order a costly second look at around 1,200 documents when there was no concrete evidence that the original privilege review had gone wrong. With trial approaching, the estimated £50,000 cost and disruption to trial preparation outweighed the potential benefit of carrying out a further review.

Documents held by consultants are not automatically within a party's control

Documents held by an arm's-length consultant are not necessarily within the appointing party's control: that depends on the express or implied terms of the engagement. However, the newly introduced paragraph 18.5 of PD 57AD permits the court to require a party to request potentially relevant documents from a third party, subject to reasonableness and proportionality.

Here, the consultant's correspondence was sufficiently ambiguous to justify asking whether he retained notes recording instructions or conversations relevant to the alleged strategy. The court therefore ordered a targeted enquiry, while recognising that it could not order the consultant to disclose his own papers, but it would be possible for the claimant to apply for third-party disclosure and/or possibly for a witness summons.

Key takeaways

• Apparently missing documents do not necessarily mean privilege has been wrongly claimed. The fact that expected documents have been withheld, or that the documents disclosed do not support your case, is not enough on its own to challenge the other side’s privilege review. There must be a proper basis for believing that documents may have been incorrectly withheld as privileged.
• Cost, timing, and context matter. Whether further disclosure will be ordered is highly fact sensitive. The strength of the evidence suggesting something has gone wrong, the steps already taken, the cost of further work and the proximity of trial may all influence the court’s approach.
• Do not overlook documents held by consultants. A consultant’s documents are not automatically within the appointing party’s control. That will depend on the terms of the relationship. However, the court may still require a party to make reasonable and proportionate enquiries of a consultant for potentially relevant documents.

Written by Jacob Berger