West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

A party claiming litigation privilege bears the burden of proving that litigation was pending or contemplated and that the communication was created for the sole or dominant purpose of obtaining legal advice or conducting that litigation. The relevant purpose is assessed objectively by reference to the person or authority directing its creation.

An affidavit asserting privilege is evidence, rather than conclusive merely by assertion. The court may go behind it where its error or incompleteness is reasonably certain from the deponent’s statements, evidence from the directing authority, or other evidence before the court. Ordinarily, the court should seek a further affidavit or, as a last resort, inspect the documents. Cross-examination concerning an affidavit of documents is available, if at all, only in an extreme case where no alternative remedy exists and the examination would not materially impinge on issues for trial.

Following the explosion and fire at the Buncefield Oil Terminal, TAV Engineering Ltd sought specific disclosure of factual material gathered by the Total defendants and Hertfordshire Oil Storage Ltd during their accident investigations. The companies asserted litigation privilege, stating that the investigations’ dominant purpose was to obtain facts for legal advice concerning anticipated civil and criminal proceedings.

TAV also sought to cross-examine the deponents supporting the claims to privilege. It contended that Total’s investigation served mandatory safety and lesson-learning purposes and might have been required by the Control of Major Accident Hazards Regulations 1999. The applications concerning Hertfordshire Oil Storage Ltd were abandoned during the hearing.

The principal questions were when the court may go behind evidence asserting litigation privilege, what procedural measures it may employ, and whether Total had established the privilege claimed.

1. Further affidavit ordered; cross-examination refused. Total’s evidence did not establish its claim to litigation privilege. Mr Malcolm Jones was required to swear a further affidavit addressing the omissions and unsatisfactory matters in his earlier affidavits. Immediate inspection was inappropriate because his evidence concerning his purpose was unequivocal and some material had emerged only during the hearing.

2. Litigation privilege applies only where litigation is pending or contemplated and the communication was made for the sole or dominant purpose of obtaining legal advice or conducting that litigation. The purpose is assessed objectively by reference to the person or authority directing the communication’s creation. An equal or similarly important non-litigation purpose defeats the claim. Once established, however, the privilege is absolute unless waived or overridden by statute.

3. The claimant to privilege bears the burden of proof. Its evidence must identify the relevant purpose with adequate specificity and, where possible, refer to contemporary material without revealing the privileged content. An assertion of privilege is evidence of the underlying fact, not a determination of it.

4. The court may go behind an affidavit where it is reasonably certain from the deponent’s statements, evidence from the directing person or entity, or other available evidence that the affidavit is incorrect or materially incomplete. Depending on the circumstances, the court may reject the claim, require further sworn evidence, or inspect the documents under the Civil Procedure Rules 1998. Inspection is a last resort.

5. The pre-CPR authorities remained relevant because CPR 32.7 substantially followed the former procedural rules. Even if the CPR removed an absolute jurisdictional bar, cross-examination concerning an affidavit of documents should be confined to an extreme case where no alternative remedy exists. It must not materially impinge on issues reserved for trial.

6. Re Barings plc was authority that the purpose of an investigation’s instigator is irrelevant where a report is required by statute. The same principle could apply to a regulatory obligation. It did not determine this application because the Control of Major Accident Hazards Regulations 1999 imposed no established reporting duty and it had not been decided whether Total was the relevant operator. Deciding that issue interlocutorily would risk prejudging a major trial issue.

7. Total’s affidavits omitted relevant information about the corporate decision to establish the investigation, the involvement of its parent company, the communication of the investigation’s purpose, and the relationship between the asserted purpose and Total’s mandatory safety procedures. They also disclosed a mistaken claim of privilege over documents concerning the investigation’s establishment.

This was a first-instance application for specific disclosure and permission to cross-examine deponents supporting claims to litigation privilege. The applications concerning Hertfordshire Oil Storage Ltd were abandoned during the hearing. No prior judicial decision is stated.