Litigation privilege: whose privilege?

The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.

Although Glencore was not a party to those proceedings it did control them. Glencore unsuccessfully argued that this was a permitted exception to the general principle that a party cannot claim litigation privilege out of proceedings to which it was not a party. 

Facts

In 2014 MMG acquired ownership of the Las Bambas mining project in Peru from Glencore on the terms of an SPA.  Following the acquisition, the Peruvian tax authority issued a tax assessment regarding two VAT matters which had the effect of increasing the tax liability of MMG.  MMG challenged the assessment.  Under the SPA Glencore was permitted to assume control of the litigation in relation to one of the VAT matters, which it did. The Peruvian proceedings remain ongoing before the Tax Court in Peru.

In 2016 MMG brought proceedings against Glencore in England to resolve a dispute as to whether Glencore was obliged to indemnify MMG in respect of the VAT liabilities that are the subject of the Peruvian proceedings.

Standard disclosure took place in April 2017.  Glencore's disclosure list referred to 1,393 documents which attracted legal professional privilege to which Glencore objected to MMG inspecting.  For some of these documents Glencore was seeking to assert litigation privilege on basis that they were created for the dominant purpose of the Peruvian proceedings.  MMG brought an application to inspect the documents challenging Glencore's claim to privilege.  MMG argued that any such right belonged to the MMG entity in whose name the litigation had been brought, on the basis that litigation privilege can arise only in favour of the party to the litigation for whom it was created.  Glencore resisted the application arguing, amongst other things, that it could assert litigation privilege as the controlling party in the relevant litigation, despite not being a party to the litigation itself.

Law

Glencore referred the court to the decision of the Court of Appeal in Guinness Peat Properties Ltd. and another v Fitzroy Robinson Partnership [1987] 1 WLR 1027.  In that case, a claim by property developers against their architects, the defendant architect sent a "notification of claim" to its insurer which also included the architects' views on the merits of the claim.  At issue was whether that communication was for the dominant purpose of litigation, a requirement that underpins a claim to litigation privilege.

The dominant purpose of the architects in making the notification was to comply with their insurance policy.  Viewed in isolation this would have been insufficient for the communication to fall under litigation privilege.  However, the Court of Appeal was satisfied that it was appropriate to take into account not only the dominant purpose of the insured architect who made the communication, but also the dominant purpose of the insurer on whose requirements the insured was acting in making it.  Viewed from that perspective, the dominant purpose of the communication was to "produce a letter of notification which would be used to aid in the conduct of litigation" and therefore fell within the scope of litigation privilege.

In arriving at that conclusion the Court of Appeal had distinguished an earlier House of Lords case Jones v Great Central Railway Co [1910] AC 4 in which the right to assert privilege was denied.  That case was factually similar but concerned a trade union and one of its members.  The basis for distinguishing that case was that, unlike in the trade union/member case, the insurer was in all but name the effective defendant to the relevant proceedings.  Glencore argued that the situation in Guinness Peat was analogous to the instant case because Glencore was "in all but name" a party to the Peruvian proceedings.

Decision

The court rejected Glencore's argument holding that Guinness Peat was not authority for the general proposition that that a person controlling litigation can assert litigation privilege against the party which it is controlling and who is the party to the proceedings.  Although not stated explicitly by the court, presumably this was because in Guinness Peat the privilege still belonged to the architect and not the insurer.  Absent that exception, the court did not depart from the established principle that litigation privilege can arise only in favour of a person who is a party to the litigation in question.

The 'not disclosed' and 'not relevant' arguments

Also of interest are two alternative arguments deployed by Glencore in addition to the litigation privilege point.

The first argument was that the 25 documents that were the subject of the application had not actually been 'disclosed' and therefore MMG should have made an application for specific disclosure rather than inspection.  The basis for this argument was the wording of CPR 31.2 "a party discloses a document by stating that the document exists or has existed" (emphasis of the definite article added), which Glencore submitted meant that each document must be individually mentioned (as opposed to being referred to as a group) in order for it to have been 'disclosed' for the purposes of the CPR.  The court did not accept this argument stating that rules on disclosure needed to be read as a whole rather than in isolation and noting that PD 31A para 3.2 provided that where there are a large number of documents they may be listed by category rather than individually.  In the particular case of privileged documents, the court referred to the guidance in CPR 31.10.3 which states that it is unnecessary to describe the privileged documents in such a manner that it would identify the document and thus thwart the assertion of privilege.  On the facts of this case the reference in Glencore's disclosure statement to 1,393 privileged documents was sufficient to 'disclose' the documents.

Glencore also submitted, in the alternative that, if the documents sought MMG had been 'disclosed', upon re-review of those documents it had been concluded they did not in fact meet the test for standard disclosure.  Glencore asked the court to exercise its discretion to refuse the MMG's application under its inherent jurisdiction to refuse inspection of disclosed documents.   However, absent any suggestion that there had been inadvertent disclosure or that the documents were commercially sensitive the court was not prepared to exercise its discretion to displace the general rule that a party to whom a document has been disclosed should be entitled to inspect that document.

Comment

Caselaw clarifying the limits of litigation privilege is always helpful although the court's decision itself in this case is unsurprising.  Had Glencore been successful it would have represented a significant expansion of the remit of litigation privilege.

In relation to the 'not disclosed' and 'not relevant' arguments, the court's position is similarly uncontroversial and reflects what is established professional practice (notwithstanding that parts of the CPR do read inconsistently).  Practitioners should be mindful that identifying specific documents as privileged on a disclosure statement means that if the documents' privileged status is successfully challenged, in most cases it will be too late to fall back on the argument that they are not relevant.  The better approach is to consider carefully the relevance of each document on its own merits prior to exchange of lists.  Had that been done in this case MMG, would have needed to make an application for specific disclosure instead, which on the facts apparent from the judgement would have had fewer prospects of success.

It should also be noted that under the current proposals of the Disclosure Working Group chaired by Lady Justice Gloster the current position with regard to the listing of privileged documents is likely to change.  The most recent draft Practice Direction (dated November 2017) states that where a person wishes to exercise a right to withhold the disclosure of a document (which would include an assertion of privilege over it) they will need to explain with reasonable precision the grounds upon which they are doing so.  This is likely to increase the risk of privilege challenges and makes a robust relevance review prior to the exchange of lists all the more important.