In Minera Las Bambas SA v Glencore Queensland Ltd ([2018] EWHC 286 (Comm)) 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 – had asserted litigation privilege. Glencore controlled these proceedings but was not a party to 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 is not a party.
In 2014 MMG acquired ownership of the Las Bambas mining project in Peru from Glencore on the terms of a sale and purchase agreement. Following the acquisition, the Peruvian tax authority issued a tax assessment regarding two value added tax (VAT) matters which had increased MMG's tax liability. MMG challenged the assessment. Under the sale and purchase agreement, Glencore was permitted to assume control of the litigation in relation to one of the VAT matters, which it did. The Peruvian proceedings are ongoing before the Peruvian Tax Court.
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; Glencore objected to MMG's inspection of these. For some of these documents, Glencore sought to assert litigation privilege on the basis that they had been 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 could arise only in favour of the party to the litigation for whom it was created. Glencore resisted the application, arguing, among 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.
Glencore referred the court to the Court of Appeal's decision in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership ([1987] 1 WLR 1027). In that case, a claim by property developers against their architects, the defendant architect had sent a 'notification of claim' to its insurer which also included the architects' views on the merits of the claim. The question at issue was whether that communication had been for the dominant purpose of litigation – a requirement that underpins a claim to litigation privilege.
The architects' dominant purpose 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 had made the communication, but also the dominant purpose of the insurer on whose requirements the insured had acted in making it. Viewed from this 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 it therefore fell within the scope of litigation privilege.
In arriving at this 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. This case was factually similar, but concerned a trade union and one of its members. The basis for distinguishing the case was that, unlike in the trade union/member case, the insurer was the effective defendant to the relevant proceedings in all but name. 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.
The court rejected Glencore's argument, holding that Guinness Peat was not authority for the general proposition 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, this was presumably because in Guinness Peat, the privilege still belonged to the architect and not the insurer. In the absence of that exception, the court did not depart from the established principle that litigation privilege can arise only in favour of a person that is a party to the litigation in question.
'Undisclosed' and 'irrelevant' arguments
Glencore deployed two alternative arguments in addition to the litigation privilege point.
The first was that the 25 documents that were the subject of the application had not actually been 'disclosed', and MMG should therefore have applied for specific disclosure rather than inspection. The basis for this argument was the wording of Civil Procedure Rules (CPR) 31.2 – "a party discloses a document by stating that the document exists or has existed" (emphasis added) – which, Glencore submitted, meant that each document must be individually mentioned (rather than 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 according to Paragraph 3.2 of Practice Direction 31A, 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 that, in the alternative, if the documents sought by MMG had been disclosed, a re-review of those documents would have concluded that they did not in fact meet the test for standard disclosure. Glencore asked the court to exercise its discretion to refuse MMG's application under its inherent jurisdiction to refuse the inspection of disclosed documents. However, in the absence of 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.
Case law clarifying the limits of litigation privilege is always helpful, although the court's decision itself in this case is unsurprising. Had Glencore succeeded, it would have represented a significant expansion of the remit of litigation privilege.
In relation to the undisclosed and irrelevant arguments, the court's position was similarly uncontroversial and reflects established professional practice (notwithstanding that parts of the CPR read inconsistently). Practitioners should be mindful that identifying specific documents as privileged in 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 irrelevant. A better approach would be to consider carefully the relevance of each document on its own merits before exchanging lists. Had that been done in this case, MMG would have needed to apply for specific disclosure instead – which, on the facts apparent from the judgment, would have had fewer prospects of success.
Under the proposals of the Disclosure Working Group chaired by Lady Justice Gloster, the existing 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 on which they are doing so. This is likely to increase the risk of privilege challenges and makes a robust relevance review before exchanging lists all the more important.
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For further information on this topic please contact Davina Given or Chris Whitehouse at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
