Challenge to assertion of litigation privilege.
Hamblen J said:
’11. The legal requirements of a claim to litigation privilege may be summarised as follows:
(1) The burden of proof is on the party claiming privilege to establish it – see, for example, West London Pipeline and Storage v Total UK [2008] 2 CLC 258 at [50].
(2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in a witness statement are not determinative and are evidence of a fact which may require to be independently proved. The court will scrutinise carefully how the claim to privilege is made out and the witness statements should be as specific as possible – see, for example, Sumitomo Corporation v Credit Lyonnais Rouse Ltd (14 February 2001) at [30] and [39] (Andrew Smith J); West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) at [52], [53], [86] (Beatson J); Tchenguiz v Director of the SFO [2013] EWHC 2297 (QB) at [52] (Eder J).
(3) The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation – see, for example, United States of America v Philip Morris Inc [2004] EWCA Civ 330 at [68]; Westminster International v Dornoch Ltd [2009] EWCA Civ 1323 at paras [19] – [20]. As Eder J stated in Tchenguiz at [48(iii)]: ‘Where litigation has not been commenced at the time of the communication, it has to be ‘reasonably in prospect’; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility’.
(4) It is not enough for a party to show that proceedings were reasonably anticipated or in contemplation; the party must also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose, this test will not be satisfied: Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA [1992] BCLC 583, 589-590 (cited in Tchenguiz at [54]-[55]); West London Pipeline and Storage Ltd v Total UK Ltd at [52].
12. In relation to the Court’s approach to the assessment of evidence in support of a claim for privilege, it has been stated that it is necessary to subject the evidence ‘to ‘anxious scrutiny’ in particular because of the difficulties in going behind that evidence’ – per Eder J in Tchenguiz at [52]. ‘The Court will look at ‘purpose’ from an objective standpoint, looking at all relevant evidence including evidence of subjective purpose’ – ibid. 48(iv). Further, as Beatson J pointed out in the West London Pipeline case at [53], it is desirable that the party claiming such privilege ‘should refer to such contemporary material as it is possible to do without making disclosure of the very matters that the claim for privilege is designed to protect’.
Hamblen J continued: ’19. . . I consider the effect of [Mr Golden’s] evidence to be that he had a suspicion concerning the sale of the Business by Starbev and instructed Barclays to investigate in order to see if there was substance to his suspicion. Barclays’ role was investigatory. Unless and until they confirmed that there was substance to Mr Golden’s suspicion there was no real reason to anticipate litigation.’
20. This is borne out by his statement that ‘it occurred to me that ICEH would end up in another dispute with Starbev’. This suggests no more than that such a dispute was a possibility. It does not connote that it was reasonably anticipated both that there would be such a dispute and that it would result in litigation. Whether or not it would do so was unlikely to be known until Barclays investigated and reported.
21. That Barclays’ role was investigatory is borne out by a number of contemporaneous documents which refer to their role as one of checking the position and calculating the payment that might be likely to come to ICEH as a result of the sale.’
Judges:
Mr Justice Hamblen
Citations:
[2013] EWHC 4038 (Comm)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 9-Jun-2008
Application for disclosure of defendant’s insurance arrangements. . .
Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
Cited – Westminster International Bv and Others v Dornoch Ltd and Others CA 4-Sep-2009
Appeal from the order of Cooke J on 30 April 2009 dismissing the application of the claimants for specific disclosure. The issue is whether the defendants are entitled to claim litigation privilege in respect of the documents in question. . .
Cited – Tchenguiz and Another v Serious Fraud Office and Others QBD 26-Jul-2013
Application for third party disclosure. . .
Cited by:
See Also – Starbev GP Ltd v Interbrew Central European Holdings Bv ComC 29-Apr-2014
Dispute between the seller and buyer of a business as to what, if any, further payments are due to the seller pursuant to the element of deferred consideration agreed between them. . .
See Also – Starbev Gp Ltd v Interbrew Central European Holdings Bv ComC 21-Aug-2014
Post judgment issues . .
See Also – Starbev Gp Ltd v Interbrew Central European Holdings Bv CA 11-May-2016
. .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Evidence
Updated: 23 March 2022; Ref: scu.519228