Litigation privilege

As a general rule, a party to whom a document has been disclosed should be entitled to inspect that document. Any party resisting that inspection…

Minera Las Bambas Sa, Mmg Swiss Finance Ag v Glencore Queensland Ltd, Glencore South America Ltd, Glencore International Ag [2018] EWHC 286 (Comm)

Summary

As a general rule, a party to whom a document has been disclosed should be entitled to inspect that document. Any party resisting that inspection bears the burden of displacing the general rule.

Litigation privilege belongs to a party in whose name the relevant litigation is being conducted. In the circumstances, a person who is controlling litigation which is being conducted in the name of another cannot assert litigation privilege against a person who is named as a party to those proceedings.

Background

By a share purchase agreement (”SPA”) dated 13 April 2013, the claimants purchased from the defendants all the shares in Xstrata Peru SA (“Xstrata”). Xstrata owned the Las Bambas mining project in Peru (“the Project”). The Project was the subject of a Peruvian tax investigation shortly after the SPA, which resulted in an order that there be an increase in the first claimant’s liability for tax. The outcome of the tax investigation was challenged by the first claimant, resulting in proceedings against the Peruvian tax authority (“the Peruvian Proceedings”). Pursuant to the terms of the SPA and a Deed of Indemnity, the defendants assumed partial control of the Peruvian Proceedings. However, the defendants did so in the name of the first claimant.

The English Proceedings

A dispute arose in England between the claimants and the defendants as to whether the defendants were obliged to indemnify the claimants under the SPA in respect of VAT payable as a consequence of the Peruvian Proceedings.  In the English proceedings the parties provided standard disclosure by list. The defendants’ disclosure list stated that there were 4,408 disclosable documents, of which 1,393 were described as ‘privileged documents’. The claimants’ solicitors discovered that, in relation to 25 of the documents otherwise described as privileged, the defendants were seeking to assert litigation privilege arising from the Peruvian Proceedings. Nine months later, the claimants brought an application under CPR 31.19(5) for determination as to whether the defendants were entitled to withhold inspection of those 25 documents.

The defendants opposed the application on the following grounds:

  • The 25 documents had not been disclosed, therefore an application for specific disclosure under CPR 31.12 should have been made;
  • Inspection should be refused because the 25 documents were produced for the Peruvian Proceedings and are covered by litigation privilege; and
  • The application should have been made at the same time as the defendants’ application for specific disclosure

The claimants argued, amongst other things, that any right to assert privilege over documents arising from the Peruvian proceedings belonged to the first claimant; and the defendants could not therefore assert privilege over the first claimant. Alternatively, the claimants contended that even if the defendants could establish their own right to withhold inspection of those documents on grounds of privilege, the first claimant was entitled to inspection based on the parties’ joint or common interest.

Judgment

Disclosure

Large numbers of documents are often listed, and disclosed, by category or class.  The defendants’ reference to the documents identified by reference to the Peruvian Proceedings was sufficient to amount to disclosure of the 1,393 documents that were described as privileged (including the 25 claimed to be covered by litigation privilege) because a document need not have been individually listed or described for it to be regarded as having been disclosed. 

Litigation privilege arising from the Peruvian Proceedings

Litigation privilege can only arise in favour of a person who was (or is) a party to the litigation in question. Any litigation privilege arising from the Peruvian Proceedings belonged to the first claimant. The defendants were not named as a party to the Peruvian Proceedings and they were not entitled to assert litigation privilege arising therefrom as against the claimant.

The court’s inherent jurisdiction

The general rule was that where documents had been disclosed, the party to whom disclosure had been made would be entitled to inspect them. However, that entitlement was not automatic; the court had discretion to refuse inspection if the resisting party could displace the general rule by reference to the principles contained in the Civil Procedure Rules (“CPR”). The defendants had carried out a disclosure exercise and had signed a disclosure statement. The defendants’ approach had been one focussed on efficiency in which they claimed privilege for a class of documents rather than assessing whether each individual document had met the test for standard disclosure. The defendants’ attempt to resist inspection of the entire class of documents had failed; and, in those circumstances, the claimants were entitled to inspect the documents falling within that class.

The timing of the application

Applications for disclosure or inspection should be made promptly. However, each case must be considered on its own facts; and the delays in making the application did not justify the denial of the claimants’ right under CPR 31.3 to inspect the documents that have already been disclosed to them. 

Comments

It was not necessary for the court to consider joint or common interest privilege in its judgment; however, it is important to note that, if two parties share a joint interest in the subject matter of a privileged document, the parties together are entitled to assert privilege as against the rest of the world but neither party can assert privilege against the other.

A further point to note is that although litigation privilege attaches to a litigant’s communications with third parties, it may only be asserted by the litigant. It follows that a party in the shoes of the defendants may be unable to claim litigation privilege arising from communications created for the dominant purpose of the Peruvian Proceedings as against a third party unless the person, in whose name the relevant litigation is or was being conducted, provides his assistance and consent. In the circumstances, those who decide to control litigation which is being pursued in the name of another could consider including, within their agreement, a clause requiring the person in whose name litigation is being pursued to expressly assert, if called upon to do so, any litigation privilege, which might arise, to assist the controlling party in any separate disputes with third parties.

For any further information or advice please contact Harriet Edwards, Trainee Solicitor on 0151 242 7947 or email harriet.edwards@weightmans.com or Amy Nesbitt, Consultant on 0207 842 0835 or email amy.nesbitt@weightmans.com.

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