United States of America v Philip Morris Inc. and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Chadwick,Lord Justice Scott Baker,Lord Justice Mummery,Sir Martin Nourse |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1064,[2004] EWCA Civ 330 |
| Docket Number | Case No: A3/2004/1092,Case No: A3/2003/2780 & A3/2003/2781 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2004 |
[2004] EWCA Civ 1064
Lord Justice Brooke
Vice President of The Court of Appeal, Civil Division
Lord Justice Mummery and
Sir Martin Nourse
Case No: A3/2004/1092
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
COMMERCIAL COURT
MR JUSTICE MOORE-BICK
Royal Courts of Justice
Strand,
London, WC2A 2LL
BARBARA DOHMANN QC & DAVID PIEVSKY (instructed by Lovells) for the Appellant
KENNETH MACLEAN QC & JAMES GOLDSMITH (instructed by Loble) for the Respondent
The Appeal
This is an expedited appeal by British American Tobacco (Investments) Limited (BATCo), brought with the permission of Brooke LJ, against a ruling made by Moore-Bick J in the Commercial Court on 22 April 2004. The judge made his ruling at a directions hearing held prior to the examination of a witness, Mr Andrew Foyle, a partner in a London firm of solicitors. He acted for BATCo and other companies in the BAT group between about November 1985 and May 1994.
On 10 December 2003 the judge had made an order for the examination of Mr Foyle pursuant to a Letter of Request issued by the United States District Court for the District of Columbia. One of the rulings made by the judge at the directions hearing on 22 April 2004 related to the question whether, under English Law, legal privilege had been voluntarily waived in respect of communications evidenced in the bundles of documents prepared for Mr Foyle's examination.
The judge made the following declaration:
"11. It be declared that:
(i) Privilege has been voluntarily waived by BATCo in any communications evidenced in documents in the examination bundles which either:
(a) Were voluntarily produced by BATCo in the US proceedings or in other US litigation without reservation of privilege under English or US law;
(b) Entered the public domain via the Minnesota Depository pursuant to the Minnesota Consent Judgment to which BATCo voluntarily consented.
(ii) The precise scope of any such voluntary waiver is to be determined on a question by question or document by document basis."
BATCo, along with other large tobacco companies, including Philip Morris Inc, is a defendant to a colossal claim in proceedings pending in the District Court for the District of Columbia. The claim is by the United States of America (the USA) under the Racketeer Influenced and Corrupt Organisations Statute (RICO) for the sum of at least US289bn. It involves the production of about 40 million documents on discovery. The nature of the litigation, in which it is alleged that the tobacco companies engaged in an unlawful enterprise to deceive and defraud the American public and consumers of cigarettes about the health risks of smoking and about their knowledge and attitude to them, is described in more detail in the judgment delivered by Brooke LJ on 23 March 2004 on an unsuccessful appeal by BATCo against Moore-Bick J's order for the examination of Mr Foyle pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975 ( [2004] EWCA (Civ) 330) .
Compared with the gargantuan scale of this litigation, the issue on this appeal is a pinhead, involving only a few documents and a short question of construction. According to BATCo, however, the declaration under appeal has "potentially serious ramifications" and important adverse consequences for it and other members of the same group of companies involved in product liability litigation in a number of jurisdictions. BATCo's documents might be deployed in other litigation, whether or not BATCo is a party. It might be said, in reliance on the declaration, that BATCo had waived privilege in the subject matter of communications evidenced by the documents, thereby opening up the field of investigation worldwide.
It is common ground that any privilege existing in the documents described in sub-paragraph (b) of the declaration, which are now available to the public, has gone. The point at issue is not whether privilege exists, but whether the privilege, which may once have existed in the documents, has, as the judge declared, gone as a result of voluntary waiver by BATCo, or, as BATCo contends, as a result of the compulsion of a court order made in accordance with the terms of the Minnesota Consent Judgment (the MCJ) referred to in the declaration. The MCJ was made following a compromise of other US proceedings brought against the tobacco companies by the State of Minnesota and others. It included provisions for obtaining court approval to the public release of documents, which had been placed by the tobacco companies, during the litigation, in a depository subject to the terms of a protective order.
It is also common ground that the resolution of the issue turns on the construction of the MCJ and whether its effect in English Law is to waive privilege in the communications evidenced by the documents. The context and terms of the MCJ is explained in more detail below. I must first deal, however, with a preliminary point raised on behalf of the USA.
A. Availability of appeal
As an opening salvo, the USA contended that no appeal against the declaration is available to BATCo. The objection taken to this court entertaining BATCo's appeal is that it raises "a moot point with no consequences for Mr Foyle's testimony or for BATCo's position in the US proceedings." As this is a preliminary objection, it should be determined at the outset. If the objection is upheld, it will be unnecessary to deal with the real controversy between the parties as to the correctness of the declaration.
Mr MacLean QC, appearing for the USA, submitted that BATCo's appeal is pointless. It should be dismissed for that reason alone. He cited Lord Hutton's recent speech in R (Rusbridger) v. AG [2004] 1AC 357 at para 35 on p371:
"It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. The point was well put by the Lord Justice-Clerk (Thomson) in Macnaughton v. Macnaughton's Trustees 1953 SC 387,392:
"Our courts have consistently acted on the view that it is their function in the ordinary run of litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case."
The "moot point" argument ran as follows: Mr Foyle's examination took place over three days from 26 to 28 April 2004; it is now over, his testimony is filed in the US District Court; and there are no further issues in the US proceedings to which the declaration might be relevant. It turned out to be unnecessary for the court to consider the extent of the waiver of privilege, as the USA had not taken advantage of it during the course of Mr Foyle's examination and did not lead any evidence which required the court to consider the extent of the waiver.
It was also argued that the precedential value of the declaration was so limited that it was fanciful to suggest that it posed any threat to BATCo's defence of future claims in other jurisdictions. Persons seeking to raise the waiver of privilege point in subsequent proceedings could turn to relevant rulings on it in other jurisdictions. Reference was made to two other judgments on the construction of the MCJ and its impact on privileged communications.
Two Judgments
The judgment given by Judge Kessler in the US District Court for the District of Columbia on 17 May 2002 dealt with the effect of the MCJ under US Law. In Order 149 she granted the USA's motion for a ruling that the defendants had waived their claims of ".Attorney-Client Privilege and Work Product Protection" over certain documents described as "the Bliley Documents" by reason, among other things (i.e. production of the documents to Congress and public policy considerations), of their consent to the public release of the documents into the Minnesota depository pursuant to the MCJ.
Judge Kessler concluded (p18) that
"…because the express terms of the settlement agreement fail to preserve the Minnesota defendants' right to oppose public release of the Bliley documents and afford the trial court complete authority to decide the matter, the Defendants waived any privilege claims for those documents."
Earlier in her judgment (p16) Judge Kessler made it clear that her conclusion was strongly influenced by the absence of express provisions in the MCJ reserving to the Minnesota defendants the right to oppose the plaintiffs' application for public disclosure or to appeal against the decision of the trial court granting approval to public disclosure. The judge rejected the defendants' contention that they had never given up their right under the previous protective order to object to public disclosure and that the right to object was so obvious that no explicit preservation provision was required.
Her view was shared by other courts which had considered the issue; it was confirmed by her in Order 409 (an unopposed order) of 1 October 2003 as the definitive ruling in relation to BATCo documents; and it was applied by her in Order 263 of 19 November 2002, adopting the report of the Special Master. She said
"… the text of the [MCJ] unambiguously provides the Minnesota plaintiffs with a mechanism to seek approval from...
To continue reading
Request your trial
-
Microtechnologies, LLC (Plaintiff) v Autonomy, Inc. (A/K/A Hp Autonomy) Autonomy Systems Ltd (Defendants and Plaintiffs in Counterclaim /Appellants) Mr Sushovan Tareque Hussain (Non-Party /Respondent)
...of Moore-Bick J at first instance and of Brooke LJ in the Court of Appeal in ( US v Philip Morris Inc [2003] EWHC 3028 (Comm) and [2004] EWCA Civ 330), she could not conclude that Mr Hussain would be advised to rely on those rights in answer to every question. She continued, at paragraph 7......
-
Microtechnologies, LLC (Plaintiff) v Autonomy, Inc. (a/k/a HP Autonomy) and Another (Defendants and Plaintiffs-in-Counterclaim) Sushovan Tareque Hussein (Non-Party)
...J at [20], [39] and [48] in USA v Philip Morris Inc [2003] EWHC 3028 (Comm) and Brooke LJ at [46] and [88] in USA v Philip Morris Inc [2004] EWCA Civ 330; [2004] 1 CLC 811. It is not possible for me to conclude that Mr Hussein would be advised to rely on his Fifth Amendment privilege in an......
-
The RBS Rights Issue Litigation
...fundamental basis, is consistent also with the other cases in England in which Three Rivers (No 5) has been considered: and see United States v Philip Morris [2003] EWHC 3028 (Comm) especially at para. 39 in the judgment of Moore-Bick J (as he then was) and the same case on appeal at [2004]......
-
Atlantica Holdings, Inc. v Sovereign Wealth Fund Samruk-Kazyna JSC
...The court must hold a fair balance between the interests of the requesting court and the interests of the witness: United States of America v Philip Morris Inc and others [2004] EWCA Civ 330, 91 In my judgment none of the matters relied upon by Ms Fatima either collectively or individually......
-
The Privilege Checklist
...obligations or remedies of the client either under private law or under public law. United States of America v Philip Morris Inc [2004] EWCA Civ 330 In this English case privilege was claimed in respect of advice given by a lawyer, Mr Foyle, on his client's document management policy in rel......
-
Preservation of Legal Privilege in Corporate Investigations – A Cross Border Comparison
...3 U.S.A v. Philip Morris Inc and British American Tobacco (Investments) Ltd [2003] EWHC 3028 (Comm), approved by Court of Appeal, [2004] EWCA Civ 330). See Principles of Federal Prosecution of Business Organizations § 9-28.710. ...
-
The FCA wades into the debate on privilege
...4 U.S.A v. Philip Morris Inc and British American Tobacco (Investments) Ltd [2003] EWHC 3028 (Comm), approved by Court of Appeal, [2004] EWCA Civ 330). Client Alert White & Case 3 Increased pressure on corporates The FCA’s comments on privilege in internal investigations are in line with th......
-
The Litigation Privilege Predicament ' The State Of Qatar v Banque Havilland SA
...needed to be a "real likelihood rather than a mere possibility" (emphasis added) - see United States of America v Philip Morris Inc. [2004] EWCA Civ 330. The Judge found that there was "little evidence to suggest that the [Luxembourg regulator's] position was, or was regarded by the Bank as......
-
DISCLOSURE OF THE COMPANY'S PRIVILEGED DOCUMENTS TO SHAREHOLDERS AS AN APPLICATION OF JOINT INTEREST PRIVILEGE
...Pte Ltd [2007] 2 SLR(R) 367 at [70]. 35 [2015] EWHC 2681. 36 Sharp v Blank [2015] EWHC 2681 (Ch) at [20]. 37 [2004] All ER (D) 448; [2004] EWCA Civ 330. Discussed in Colin Passmore, Privilege (London: Sweet & Maxwell, 4th Ed, 2020) at paras 3-169–3-174. Cited with approval in Skandinaviska ......
-
United Kingdom
...Direction 34A, ¶ 6.3. Note that the court may require sample questions to be provided. See United States v. Philip Morris Inc . [2004] EWCA Civ 330 (CA) 22 (appeal taken from Eng.). The letter of request must also state the specific questions that will be used during the examination, but th......
-
Subject Index
...US 218(1967) ................................................ 18United States of America v BritishAmerican Tobacco (Investments) Ltd[2004] EWCA Civ 330, BAT .. 195–196United States of America v Philip MorrisInc. [2004] EWCA Civ 330 ........... 193Vaise v Delaval (1785) 1 TR 11 .........187V......
-
Table of Cases
...Valensia, 222 F 3d 1173(9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 252United States of America v Philip Morris Inc.[2004] EWCA Civ 330 . . . . . . . . . . . . . . . . . . .54Van Riper v United States, 13 F (2d) 961(2d Cir), cert. denied, 273 US 702 (1926) . . . .. . . . .......