| PRACTICE — Discovery – Privilege — Legal advice privilege — Defendants claiming legal advice privilege in respect of investigations undertaken as part of safety management system — Whether information privileged — Circumstances in which and means by which court permitted to go behind claim for legal advice privilege
West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm); [2008] WLR (D) 248
QBD: Beatson J: 22 July 2008
Guidance as to the principles applicable to determining a claim to litigation privilege.
Beatson J, sitting in the Queen’s Bench Division, gave such guidance on interlocutory applications made by TAV Engineering Ltd, the third party, for specific disclosure of documents over which the defendants, Total UK Ltd, Total Downstream Oil Storage plc and Hertfordshire Oil Storage Ltd, had asserted legal advice privilege and for cross-examination of a managing director of the first defendant, who had served an affidavit in opposition to the defendants’ interlocutory applications, in an action brought by the claimants, West London Pipeline and Storage Ltd and United Kingdom Oil Pipelines Ltd, against the defendants for negligence in respect of an explosion and fire at the Buncefield Oil Terminal in Hertfordshire. The documents for which privilege was claimed included investigations undertaken as part of the safety management system the defendants were required to have in place pursuant to the Control of Major Hazard Regulations 1999 (SI 1999/743).
BEATSON J said that it was possible to distil the following propositions from the authorities on challenges to claims to litigation privilege. (1) The burden of proof was on the party claiming privilege to establish it. The court should be particularly careful to consider how the claim for privilege was made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege was designed to protect. (2) An assertion of privilege and a statement of the purpose of the communication over which privilege was claimed in an affidavit were not determinative and were evidence of a fact which might require to be independently proved. (3) It was, however, difficult to go behind an affidavit of documents at an interlocutory stage in proceedings and the affidavit was conclusive unless it was reasonably certain from (a) the statements of the party making it that he had erroneously represented or misconceived the character of the documents in respect of which privilege was claimed or (b) the evidence of the person who or entity which directed the creation of the communications or documents over which privilege was claimed indicated that the affidavit was incorrect or (c) there was other evidence before the court that the affidavit was incorrect or incomplete on the material points. (4) Where the court was not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection was established, there were four options: (a) it might conclude that the evidence did not establish a legal right to withhold inspection; (b) it might order a further affidavit to deal with matters which the earlier affidavit did not cover; (c) it might inspect the documents (CPR r 31.19(6)) as a solution of last resort; (d) at an interlocutory stage it might order cross-examination of a person who had sworn an affidavit although the weight of authority was that cross-examination might not be ordered in the case of an affidavit of documents. In cases where the issue was whether the documents existed, the existence of the documents was likely to be an issue at the trial and there was a particular risk of a court at an interlocutory stage impinging on that issue. Furthermore whilst there was no longer a jurisdictional bar to cross-examination of the deponent on his affidavit under CPR r 32.7 the exercise of that power should be reserved for extreme cases where there was no alternative relief. (5) Where a report was prepared pursuant to a statutory obligation the purposes of the instigator of the report were irrelevant. The report could not be said to have been prepared for the purpose of litigation and legal advice privilege could not therefore be claimed. This was not, however, necessarily the case where the obligation was a regulatory one rather than a statutory obligation. In the circumstances of the case the claim for privilege in respect of the affidavits had not been established. This was not, however, a case where it was appropriate to order cross-examination, it was sufficient for an order to be made for a further affidavit to deal with the matters which the earlier affidavits did not cover.
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