West London Pipeline and Storage Ltd v Total UK Ltd [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | Beatson J |
| Judgment Date | 22 July 2008 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 22 July 2008 |
Beatson J.
Queen's Bench Division (Commercial Court).
Specific disclosure — Litigation privilege — Cross-examination — When court could go behind affidavit of documents — Third party sought specific disclosure of documents — Litigation privilege claimed — Material sought gathered in course of investigations into incident — Dominant purpose of investigations so that solicitors could provide legal advice in connection with expected proceedings — Implied statutory duty to investigate but no duty to report — Affidavits did not enable court to conclude that claim for privilege established — Maker of affidavits required to swear further affidavit dealing with matters on which earlier affidavits not satisfactory — Not appropriate to order cross-examination — Civil Procedure Rules 1998, r. 32.7 — Control of Major Hazard Regulations 1999.
This was an application by the third party (TAV) for specific disclosure of documents over which the defendants had asserted litigation privilege.
The proceedings arose out of the explosion and fire at the Buncefield Oil Terminal in Hertfordshire in December 2005. The fire engulfed a large proportion of the terminal's site and caused injuries to individuals and very significant damage to properties in the area. Negligence had been admitted. There was to be a trial of preliminary issues to determine, among other things, who was the operator of the site for the purposes of the Control of Major Hazard Regulations 1999 (“the COMAH Regulations”), which applied to the site, and who was responsible for the negligence and thus liable for the consequences of the incident. Those issues involved determining whether the relevant persons working at the terminal were “embedded” into Hertfordshire Oil Storage Ltd (HOSL) so that HOSL alone would be vicariously liable for any negligence on the part of those persons. HOSL was a joint venture between Total and Chevron.
TAV was the engineering company which designed and manufactured the high level switch which was fitted to Tank 912 from which the fuel spilled. The material TAV sought from the Total defendants and from HOSL was factual material gathered by them in the course of their investigations into the incident. It included interviews conducted, the outcome of the investigations the operator of the site undertook as part of the safety management system it was required to have by the COMAH Regulations, and the reports of the accident investigation teams set up by Total and HOSL. The Total defendants and HOSL resisted the applications on the ground that the investigations fell within the rule in Waugh v British Railways BoardELR [1980] AC 521 and were covered by litigation privilege. Their evidence was that it was expected that civil and criminal proceedings might be brought against them and that the dominant purpose of the investigations was to identify the causes of the explosion so that their solicitors could provide legal advice in connection with the expected proceedings. They argued that the dominant purpose of the accident investigations was to obtain factual information so that the lawyers could provide advice about the contemplated proceedings, and that there was no jurisdiction to go behind an affidavit as to disclosure, including one claiming privilege, by ordering cross-examination.
Held, ruling accordingly:
1. Where a report was prepared pursuant to a statutory obligation the purposes of the instigator of the report were irrelevant. There should be no difference in principle where the obligation was a regulatory rather than a statutory obligation. However, the Total defendants' claim for privilege could not be rejected on the ground that the Total accident investigation reports and communications were produced pursuant to Total's regulatory duties under the COMAH Regulations: while there might be an implied duty under the regulations to investigate, there was no duty to report; more fundamentally, it had not been established that Total was the operator of the site for the purpose of the COMAH Regulations. That would be a major issue at the trial. (Lonrho plc v Fayed (No. 3) (The Times, 24 June 1993) and Re Barings plcUNK[1998] 1 All ER 673 considered.)
2. There were a number of respects in which the Total defendants' affidavits were not satisfactory. They did not enable the court to conclude that the claim for privilege had been established. They exhibited no documents in support of what was said as to the purpose of establishing the Total accident investigation. However, in the light of the statement that the dominant purpose in setting up the investigation was to prepare for contemplated legal proceedings, it would not be appropriate to order inspection of the documents on the ground that the defendants had not satisfied the burden of proof. The affidavits did not disclose all that they ought to disclose. A further affidavit should be sworn to deal with the matters which the earlier affidavits did not cover or on which they were unsatisfactory. (Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway CoELR[1913] 3 KB 850, Ankin v London & North Eastern Railway CoELR[1930] 1 KB 527 and National Westminster Bank plc v Rabobank NederlandUNK[2006] EWHC 2332 (Comm) considered.)
3. On the assumption that there was jurisdiction to order cross-examination in this context, this was not an appropriate case for doing so.
The following cases were referred to in the judgment:
Ankin v London & North Eastern Railway CoELR [1930] 1 KB 527.
Atos Consulting Ltd v Avis plc (No. 2)UNK [2007] EWHC 323 (TCC).
Attorney-General v EmersonELR (1882) 10 QBD 191.
Bank Austria Akt v Price Waterhouse (16 April 1997).
Barings plc, ReUNK [1998] 1 All ER 673.
Biguzzi v Rank Leisure plcWLR [1999] 1 WLR 1926.
Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway CoELR [1913] 3 KB 850.
Fiona Trust Holding Corp v PrivalovUNK [2007] EWHC 39 (Comm).
Frankenstein v Gavin's House-to-House Cycle Cleaning and Insurance CoELR [1897] 2 QB 62.
Grant v DownsUNK (1976) 135 CLR 674.
Guinness Peat Properties Ltd v Fitzroy Robinson PartnershipWLR [1987] 1 WLR 1027.
Highgrade Traders Ltd, ReUNK [1984] BCLC 151.
House of Spring Gardens Ltd v WaiteUNK [1985] FSR 173.
Jones v Monte Video Gas CoELR (1880) 5 QBD 556.
L (A Minor) (Police Investigation: Privilege), ReELR [1997] AC 16.
Lask v Gloucester Health Authority (6 December 1985).
London Fire and Emergency Planning Authority (LFEPA) v Halcrow Gilbert & Co LtdUNK [2004] EWHC 2340 (QB).
Lonrho plc v Fayed (No. 3) (The Times, 24 June 1993).
McAvan v London Transport Executive [1982] CA Transcript 498.
Motorola Credit Corp v Uzan [2003] 2 CLC 1026; [2004] 1 WLR 113.
National Westminster Bank plc v Rabobank NederlandUNK [2006] EWHC 2332 (Comm).
Neilson v LaugharneELR [1981] 1 QB 736.
Nomura International plc v Granada Group LtdUNK [2007] EWHC 642 (Comm); [2007] 1 CLC 479.
Purdy v Cambran (17 December 1999).
R v Derby Magistrates' Court, ex parte BELR [1996] AC 487.
R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income TaxELR [2003] 1 AC 563.
Sumitomo Corp v Credit Lyonnais Rouse Ltd (2001) 151 NLJ 272; [2002] 1 WLR 479 (CA).
Three Rivers District Council v Bank of EnglandELR [2005] 1 AC 610.
Visx Inc v Nidek Co LtdUNK [1999] FSR 91.
Waugh v British Railways BoardELR [1980] AC 521.
Winterthur Swiss Insurance Co v AG (Manchester) LtdUNK [2006] EWHC 839 (Comm).
Yukong Lines v Rendsburg (17 October 1996, CA).
G Pollock QC and C Blanchard (instructed by Halliwells) for the third party/applicant.
Lord Grabiner QC and A Maclean (instructed by Davies Arnold Cooper) for the first and second defendants/respondents.
P Edey (instructed by Edwards Angel) for the third defendant/respondent.
Beatson J:
1. The principle issue in the applications before me is whether the court can go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means. The proceedings in which the applications have been made arise out of the explosion and fire at the Buncefield Oil Terminal in Hertfordshire on 11 December 2005. The fire engulfed a large proportion of the terminal's site and caused injuries to individuals and very significant damage to properties in the area. Several hundred million pounds are claimed. There is to be a trial of preliminary issues before David Steel J in October 2008. Negligence has been admitted. The principal issues now are between the defendants, Total UK Ltd, Total Downstream UK plc (the “Total defendants”) and Hertfordshire Oil Storage Ltd (“HOSL”).
2. The principal issues include: who was the operator of the site on December 11 for the purposes of the Control of Major Hazard Regulations 1999 (the “COMAH Regulations”), which applied to the site, and who was responsible for the negligence and thus liable for the consequences of the incident. These issues involve determining whether the relevant people working at the terminal were “embedded” into HOSL so that HOSL alone would be vicariously liable for any negligence on the part of those people. HOSL is a joint venture between Total and Chevron. If HOSL alone is responsible for the incident, the joint venture arrangements may mean that 40% of the financial consequences will ultimately be borne by Chevron.
3. TAV Engineering Ltd (“TAV”) is the engineering company which designed and manufactured the high level switch which was fitted to Tank 912 from which the fuel spilled. It is the third party in this action. In application notices dated 22 May and 17 June 2008 it seeks specific disclosure of documents over which the Total defendants and HOSL have asserted litigation privilege. TAV also applied to cross-examine Mr Malcolm Jones, the Managing Director of Total UK Ltd, and Mr Richard Jones, a...
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