Commercial Court finds non-party not entitled to assert litigation privilege

The Commercial Court has held that a non-party who controlled litigation was not entitled to assert litigation privilege against the party it was controlling and who was the party to the proceedings: Minera Las Bambas SA v Glencore Queensland Ltd [2018] EWHC 286 (Comm).

The decision is a reminder that litigation privilege belongs to the party to the litigation. A third party who controls litigation but is not itself party to the litigation may have other rights in respect of the material covered by litigation privilege in the hands of the litigating party, such as joint or common interest privilege. However, these rights will not allow the third party to assert privilege as against the litigating party.

The decision also contains a puzzling suggestion that the claim to privilege failed for the additional reason that the documents were prepared for use in other proceedings (in this case Peruvian proceedings) rather than the current proceedings in which the right to privilege was asserted. It is not clear, however, why that should be relevant: litigation privilege will ordinarily apply where documents have been prepared for the dominant purpose of any litigation that was in reasonable contemplation at the relevant time, whether or not such litigation ultimately ensued. As it's put in Charles Hollander's Documentary Evidence, litigation privilege "can be claimed in this jurisdiction in relation to litigation in foreign courts, even if the foreign court knows no such privilege".

We understand that the Court of Appeal has refused permission to appeal against the decision.

Background

The claimants purchased from the defendants 100% of the shares in a Peruvian company. After the sale closed, the Peruvian tax authority began an investigation into certain VAT matters connected with a mining project owned by the company, and ultimately issued a tax assessment under which the first claimant's tax liability was increased. The first claimant commenced proceedings against the Peruvian tax authority challenging the assessment.

The defendants assumed control of one of the two aspects of the Peruvian proceedings, pursuant to a right in the sale and purchase agreement (SPA). The proceedings remained in the name of the first claimant.

The proceedings before the Commercial Court concern whether the defendants are obliged to indemnify the claimants in respect of the VAT liabilities that are the subject of the Peruvian proceedings. The question for the court in the present application was whether the defendants were entitled to assert litigation privilege against the claimants in respect of certain documents prepared for the purposes of the Peruvian proceedings.

The claimants said that any right to litigation privilege over documents generated for the dominant purpose of the Peruvian proceedings belonged to the first claimant and it was not open to the defendants to assert that privilege against the first claimant. In response the defendants said that the privilege belonged to them as they were "in all but name the effective defendant to the proceedings" (relying on Guinness Peat Properties v Fitzroy Robinson Partnership [1987] 1 WLR 1027).

Decision

The Commercial Court (Mrs Justice Moulder) held that the defendants could not assert litigation privilege in respect of the documents.

The judge accepted that it is an established principle that litigation privilege can only arise in favour of a person who is a party to the litigation in question. The policy underlying privilege is that a party should be free to seek evidence without being obliged to disclose the results to the other side. This rationale does not extend to a non-party.

The judge did not accept that the decision in Guinness Peat was authority for the proposition that a person controlling litigation can assert litigation privilege against the party which it is controlling and who is the party to the proceedings. In that case, the question was whether a defendant to a professional negligence claim could assert litigation privilege over the "notification of claim" to its insurer. The claimant argued that, as the defendant's purpose in making the notification was to comply with the terms of its policy, the notification was not subject to litigation privilege. The Court of Appeal disagreed, accepting the defendant's submission that it was appropriate to take into account the dominant purpose of the insurer in requiring the notification - which was to use it for the purpose of obtaining advice in any ensuing litigation - not just the purpose of the insured in sending the notification.

Accordingly, Moulder J found that any right to assert litigation privilege arising out of the Peruvian proceedings was that of the claimants as a party to those proceedings, and the defendants could not assert such privilege against them.

The judge added that, even if she were wrong on that point, and it was open to the defendants as a matter of principle to assert litigation privilege where it controlled litigation of a party, they had not established that a claim for litigation privilege could be maintained "where the control which is being exercised is not over a party to these proceedings and in relation to documents created for use in these proceedings but in relation to documents created in relation to other proceedings to which the defendants are not a party". She said she would have held that the claim for litigation privilege failed accordingly.

Having determined that the defendants were not entitled to assert litigation privilege over the documents, she declined the defendants' invitation to exercise her discretion to refuse the disclosure application in any event under the court's inherent jurisdiction. The judge accepted the defendants' evidence that they had determined, on a re-review, that the documents did not meet the test for standard disclosure and therefore would not have had to be disclosed in the defendants' list of documents. However, as they had been disclosed (as part of a generic description of privileged documents), the burden was on the defendants to displace the general rule that inspection should be permitted. They had not discharged that burden. There was no suggestion that the documents were commercially sensitive or that disclosure was inadvertent, and it was unlikely to take a great deal of resource for inspection to go ahead.