Henderson LJ refused to grant Victorygame permission to appeal against the Judge's finding that, in ascertaining the dominant purpose of a document, what matters is the purpose of the party instigating the document in question, who may or may not have been its author. In her leading judgment, Lady Justice Andrews, with whom the other Lord Justices agreed, observed that the Judge's conclusions in this regard were in accordance with principle and authority and could not be challenged. The dominant purpose must be determined objectively based upon all the evidence, including, but not necessarily limited to, the subjective intention of the party instigating the document in question. Henderson LJ also refused to permit Victorygame to challenge the Judge's finding that Ahuja was the instigator of the relevant documents.
However, Henderson LJ did grant Victorygame permission to appeal on two limited grounds. Victorygame was permitted to argue before the Court of Appeal that (i) contrary to the Judge's finding, Ahuja's purpose in instigating the Correspondence was not for the dominant purpose of the litigation against Victorygame; and (ii) that there is a principle of law to the effect that a party cannot maintain privilege over information it has procured by deliberate deception, that this principle extends to situations involving third parties, rather than just parties to litigation, and that the Judge had erred in finding the contrary.
The Court of Appeal dealt swiftly with the argument that Ahuja's dominant purpose in instigating the Correspondence was not to use the information elicited in the litigation against Victorygame. The Court held that there was no error of law in the Judge's approach and that he was entitled to reach the conclusion he did. Leading counsel for Victorygame submitted that where a communication had been made for two purposes, one patent and one latent, the court had no basis for refusing to treat the patent purpose as the dominant one. The Court rejected this submission as a "highly unattractive proposition", which would be tantamount to allowing the form of a communication to take precedence over the substantive reason it was sent.
On the issue of whether a party can maintain privilege over information procured deceptively from a third party, the Court of Appeal referred to what Lord Scott of Foscote said in Three Rivers (No 6): "… if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute … but it is otherwise absolute".
The Court of Appeal suggested that Lord Scott's reference to waiver was likely shorthand for waiver and estoppel and relied on Three Rivers (No. 6) as authority for the principle that legal professional privilege, once acquired, is absolute, subject to waiver, estoppel, and any overriding statute. There was no suggestion of an estoppel in this case, and the Court of Appeal dismissed Victorygame's argument that Ahuja had waived privilege over the Correspondence through the production of a further witness statement from Mr Davies made in the second appeal proceedings.
The Court of Appeal held that what the Judge had described as an "element of deception" in Ahuja's procurement of information from Stradbrooks was irrelevant to the question of whether the Correspondence remained privilege. Indeed, the Court of Appeal held that "[t]here is room for more than one view about [Ahuja's] tactics", and that Ahuja was likely entitled to the information ultimately supplied by Stradbrooks. Stradbrooks and their insurers were not deceived into handing the documents over on the basis of a misleading impression that Ahuja was not going to use those documents for the purposes of the underlying litigation against Victorygame. The Court of Appeal concluded that the implicit misrepresentation of Ahuja’s intentions towards Stradbrooks, even if deliberate, was not a principled basis on which to deny an otherwise well-founded claim for privilege.