Município de Mariana & Ors v BHP Group (UK) Ltd & Anor (Ruling on interview notes)

Litigation privilege protects witness interview notes where litigation was reasonably contemplated and the dominant purpose of obtaining the interviews was to obtain information or evidence for anticipated or ongoing proceedings, enable legal advice, assess merits, or prepare litigation strategy. The court must scrutinise the evidence supporting the claim objectively and carefully. Publication of an investigation’s findings does not necessarily waive privilege in the underlying investigative process or evidence-gathering materials. The court may distinguish between the public outcome of an investigation and the privileged process by which evidence was collected.

The claimants applied for notes of interviews conducted during an investigation into the collapse of a dam. They sought a review by the defendants’ solicitors of the notes, with any privilege claims identified and disputes referred back to the court.

The defendants resisted disclosure, asserting litigation privilege. The court considered witness evidence from BHP’s chief legal counsel and a partner at Cleary Gottlieb, which described the anticipated litigation, investigations and proceedings, and the purposes and conduct of the witness interviews.

1. Application refused. The witness interview summaries and notes were protected by litigation privilege, and no further review by the defendants’ solicitors was ordered.
2. The applicable requirements, summarised in Al-Sadeq v Dechert LLP [2024] EWCA Civ 28 from Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038, were not disputed. The party claiming privilege bears the burden of proof. The court must scrutinise the evidence carefully and objectively. Litigation must have been reasonably contemplated or anticipated, and the relevant communications must have been created for the dominant purpose of obtaining legal advice or evidence or information for use in the anticipated or contemplated proceedings.
3. The evidence established that litigation was very likely after the collapse. The investigation was commissioned to assess the cause and merits of potential claims and proceedings, obtain information and evidence, enable legal advice, prepare defences and responses, and develop litigation strategy.
4. The fact that the Panel Report was later published did not deprive the underlying investigation of privilege. A distinction could properly be drawn between the published outcome and the investigative process, particularly the evidence-gathering work overseen by Cleary Gottlieb.