Burmah Oil Company Ltd v Governor and Company of the Bank of England
| Jurisdiction | UK Non-devolved |
| Year | 1979 |
| Court | House of Lords |
| Date | 1979 |
Crown - Privilege - Objection to produce documents - Oil company action challenging fairness of commercial agreement with Bank of England - Bank acting under government guidance during company crisis - Crown intervention on summons for discovery - Ministerial certificate asserting privilege in public interest - Documents concerned with formulation of national policy and confidential information from business concerns - Whether documents privileged
On January 23, 1975, an agreement was made between the plaintiffs, an oil company, and the Bank of England acting in close contact with and under the direction of the government, with the object of rescuing the company from grave financial difficulties arising out of the international oil crisis on terms consistent with the government's national economic policy. A term of the agreement involved the sale and transfer to the bank of nearly 78 million ordinary stock units in British Petroleum held by the company at £2.30 per unit, the price required by the government.
In October 1976 the oil company began an action against the bank claiming a declaration that the sale was unconscionable and inequitable and an order that the bank should transfer the stock units back to the company at the price paid in 1975, about £179 million. In March 1977 the company sought an order for discovery of all documents held by the bank relevant to the issues pleaded. The bank disclosed quantities of material relevant to the issues, but on government instructions resisted production of 62 documents in its possession and control. On the hearing of the summons the Crown intervened by the Attorney-General, the bank taking no part in the proceedings. Objection to production was taken by the Chief Secretary to the Treasury in a certificate stating that he had personally read and considered each of the 62 documents listed in a schedule and had formed the opinion that their production would be injurious to the public interest. He particularised the documents in three categories: categories A and B consisted of classes of documents relating to the formulation of government policy in the light of the international consequences of the financial collapse of the oil company and its effect on governmental oil policy, as discussed either at ministerial level or at a lower level with the bank but related to eventual formulation of ministerial policy; category C documents concerned commercial or financial information communicated in confidence to the government or the bank by major business companies and other businessmen; and in respect of those the certificate claimed that the preservation of confidence was in the public interest since if it became known that what was imparted in confidence might be revealed publicly, such information necessary to policy decisions, would cease to be so readily forthcoming.
By innocent mistake six of the 62 listed documents were sent by the bank's solicitors to the company's solicitors in legible form and were read by them and their counsel. On the hearing of the summons copies of them were handed to Foster J. in a sealed envelope which he did not open. He upheld the Crown's claim for privilege for all the documents without looking at any of them, as he had been invited to do; but he gave the company leave to appeal. At the end of argument the Court of Appeal read the documents in the sealed envelopes before preparing their judgments. The Court of Appeal (by a majority) dismissed the appeal.
On the plaintiffs' appeal to the House of Lords the list of 62 documents discovery of which the company originally sought was reduced to 10 (two in category A and eight in category B): —
Held, (1) (Lord Wilberforce dissenting) that the documents should be produced for inspection by the House of Lords, for the present case was one where without inspection of the documents it was not possible to decide whether the balance of public interest lay for or against disclosure (post, pp. 736G–737B, 744D–G, 745G–746A, 750A–C, 751C–D, G, 757A–C, 759E–H).
(2) That the documents having been inspected (per Lord Salmon and Lord Edmund-Davies; Lord Keith of Kinkel dubitante) none of them contained matter of such evidential value as to make an order for their disclosure, in all the circumstances, necessary for disposing fairly of the case (post, pp. 738F–G, 746A–B, 751H); (per Lord Scarman) that they were relevant but their significance was not such as to override the public service objections to their production; and that, accordingly, the appeal must be dismissed (post, p. 761E, F).
Per Lord Keith of Kinkel and Lord Scarman. Where the court inspects a document for which Crown privilege is claimed the Crown should have a right to appeal before the document is produced (post, pp. 751F, 761D–E).
The following cases are referred to in their Lordships' opinions:
Barty-King v. Ministry of Defence (unreported), October 10, 1978, May J.
Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co.(
Conway v. Rimmer[
Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2)[
D. v. National Society for the Prevention of Cruelty to Children[
Duncan v. Cammell, Laird & Co. Ltd.[
Glasgow Corporation v. Central Land Board,
Grosvenor Hotel, London (No. 2), In re[
Nixon v. United States(
North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd.[
Occidental Worldwide Investment Corporation v. Skibs A/S Avanti (The Siboen and The Sibotre)[
Pao On v. Lau Yiu Long[
Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department[
Robinson v. State of South Australia (No. 2)[
Sankey v. Whitlam(
Science Research Council v. Nasse[
Smith v. East India Co.(
Tito v. Waddell (unreported), March 3, 1975, Walton J.
United States v. Bethlehem Steel Corporation(
United States v. Reynolds(
Westminster Airways Ltd. v. Kuwait Oil Co. Ltd.[
The following additional cases were cited in argument:
Admiralty v. Aberdeen Steam Trawling and Fishing Co. Ltd.,
Attorney-General v. Jonathan Cape Ltd.[
Birkett v. James[
Carmichael v. Scottish Co-operative Wholesale Society Ltd.,
Hennessy v. Wright(
Rogers v. Orr,
Wadeer v. East India Co.(
APPEAL from the Court of Appeal.
This was an appeal, with leave of the Court of Appeal, from an order dated January 19, 1979, of the Court of Appeal (Bridge and Templeman L.JJ., Lord Denning M.R. dissenting) affirming an order dated July 28, 1978, of Foster J. whereby he refused to order production of the 62 documents listed in Part III of Schedule 1 to the list of documents served by the respondents, the Governor and Company of the Bank of England (“the bank”), in the action between the appellants, the Burmah Oil Co. Ltd. (“Burmah”), and the bank.
The bank had objected to produce the 62 listed documents on the ground that those documents belonged to classes of documents the production of which would be injurious to the public interest. In support of that ground the bank had put forward a certificate dated October 18, 1977, made by the Chief Secretary to Her Majesty's Treasury in which, he stated that he had read and carefully considered all the 62 listed documents and had formed the opinion that their production would be injurious to the public interest.
By a summons dated March 15, 1978, in the action between Burmah and the bank Burmah sought an order for the production of the 62 listed documents. On the hearing of that summons before Foster J. the respondent, Her Majesty's Attorney-General, intervened to argue in support of the claim that production of the scheduled documents would be injurious to the public interest. The Attorney-General also appeared and argued in support of that claim on the hearing of Burmah's appeal before the Court of Appeal. The bank appeared but took no part in the arguments before Foster J. and the Court of Appeal. The Attorney-General had been joined as a respondent to the appeal to the House of Lords in order that he might, again, have the opportunity to argue in support of the public interest claim. The Attorney-General was not a party to the action between Burmah and the bank.
The facts are stated in their Lordships' opinions.
Leonard Hoffmann Q.C. and J. M. Chadwick for the Burmah Oil Co. Ltd.
D. K. Rattee Q.C. and Andrew Smith for the bank.
S. C. Silkin Q.C. and Peter Gibson for...
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