Minera Las Bambas SA & Anor v Glencore Queensland Ltd & Ors

Disclosure may be made by identifying documents by category, including a class of privileged documents, where the disclosure statement clearly states that the documents exist. Individual numbering is not essential. Once documents have been disclosed, the general rule is that the receiving party may inspect them. The disclosing party bears the burden of showing why inspection should be refused.

That burden is not discharged merely because a later review concludes that the documents need not have been disclosed, particularly where the disclosing party signed a disclosure statement and identifies no prejudice. Litigation privilege arising from proceedings belongs to a party to those proceedings. A non-party controlling the litigation cannot ordinarily assert that privilege against the party to the proceedings.

The claimants sought inspection of 25 documents over which the defendants asserted litigation privilege arising from ongoing proceedings in Peru. The defendants had disclosed 1,393 privileged documents by a disclosure statement, but had not individually identified the 25 documents.

The defendants argued that the documents had not been disclosed, that they did not meet the test for standard disclosure, that litigation privilege belonged to them because they controlled the Peruvian proceedings, and that the inspection application was made too late. The central issues were whether the documents had been disclosed, whether the defendants could assert privilege against the claimant who was a party to the Peruvian proceedings, and whether inspection should nevertheless be refused under the court’s inherent jurisdiction.

1. Disclosure. The 25 documents were included within the 1,393 privileged documents identified in the defendants’ signed disclosure statement. Under CPR 31.2, read with the disclosure rules as a whole, documents may be identified by category under PD 31A para 3.2. Individual identification was unnecessary, especially where fuller description could undermine the privilege claim. The documents had therefore been disclosed.
2. Litigation privilege. The defendants could not assert against the claimants litigation privilege arising from the Peruvian proceedings. The privilege belongs to a party to the relevant litigation. Guinness Peat Properties Ltd and another v Fitzroy Robinson Partnership [1987] 1 WLR 1027 was principally concerned with the dominant-purpose test and did not establish that a person controlling litigation may assert privilege against the party whom it controls. The policy underlying litigation privilege does not extend to a non-party seeking to withhold material from the party to the proceedings.
3. Alternatively, even if a person controlling litigation could in principle assert privilege, the defendants had not established a right to do so where the control concerned proceedings to which they were not parties and documents created for those proceedings.
4. Inspection and discretion. The fact that the defendants later concluded that the documents did not meet the standard-disclosure test did not undo their disclosure. The general rule under CPR 31.3 was engaged, and the defendants showed no commercial sensitivity, inadvertent disclosure or other prejudice sufficient to displace it. National Crime Agency v Abacha [2016] EWCA Civ 760 confirmed that inspection is discretionary, but did not justify refusal here. The delay also did not warrant refusal. Inspection of the 25 documents was ordered.