West London Pipeline and Storage Ltd and Another v Total UK Ltd and others; Comc 22 Jul 2008

References: [2008] EWHC 1729 (Comm), [2008] 2 CLC 258,
Links: Bailii
Coram: Beatson J
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 assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved; it is difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: 1) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection; It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory; It may inspect the documents; At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets.
This case is cited by:

  • Cited – Property Alliance Group Ltd -v- The Royal Bank of Scotland Plc ChD (Bailii, [2015] EWHC 321 (Ch))
    The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .

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Last Update: 11-Feb-16 Ref: 271151