British American Tobacco (Investments) Ltd v United States of America

A document does not lose legal privilege by voluntary waiver merely because a party agrees to a procedure under which a court may later order its public release. Voluntary waiver requires an express or implied election to disclose. Where public access depends on an independent judicial decision and the party objects to disclosure, the disclosure contains an element of compulsion and is not voluntary. Foreign decisions on waiver do not determine the position under English law where the relevant rules differ. An appeal remains justiciable where a live practical dispute exists, even though the immediate proceedings have ended.

British American Tobacco (Investments) Ltd appealed against a declaration made by Moore-Bick J in the Commercial Court during proceedings concerning the examination of a solicitor under a letter of request from the United States District Court for the District of Columbia.

The declaration stated that privilege had been voluntarily waived in documents which had entered the public domain through the Minnesota Depository under the Minnesota Consent Judgment. The examination had concluded before the appeal, and the United States argued that the issue was moot. The central questions were whether the appeal remained justiciable and whether the Consent Judgment resulted in voluntary waiver of privilege under English law.

1. Appeal allowed. The declaration was set aside. The issue remained live and practical because the United States had obtained the declaration below and resisted its reversal, and the declaration could affect the parties’ legal positions concerning the documents and privilege.
2. Voluntary waiver requires an express or implied election to disclose communications which privilege would otherwise protect. Agreeing to a procedure under which a court has discretion to order public release, while retaining the opportunity to object and in fact objecting, is not an election to disclose.
3. On its proper construction, the Minnesota Consent Judgment did not automatically make the documents public or give the plaintiffs an absolute right to release them. Public access depended on court approval, and the final decision rested with the court. BATCo objected to disclosure, and the documents became public only after the court approved release against its wishes.
4. The procedure therefore contained an element of compulsion which displaced the voluntary character required for waiver. BATCo’s only election was to accept the Consent Judgment and its court-controlled protection. Any separate waiver arising from documents voluntarily disclosed elsewhere had to be determined document by document.
5. The United States and New South Wales decisions were persuasive only on their own domestic laws. The issue estoppel argument based on Judge Kessler’s decision was unavailable, having been raised for the first time on appeal. In any event, the foreign court had applied United States law, whereas the English court had to determine the issue under English law.

• Court of Appeal (Civil Division): appeal allowed and the declaration made below set aside.
• High Court, Commercial Court: Moore-Bick J made the declaration on 22 April 2004 that privilege had been voluntarily waived in the specified documents, with the precise scope to be determined document by document.