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The Commercial Court, Queen’s Bench Division has allowed an application challenging the withholding of inspection of certain categories of documents on the grounds of litigation privilege (Starbev GP Ltd v Interbrew Central European Holding BV  All ER (D) 116 (Jan),  EWHC 4038 (Comm)).
In doing so, it considered the ‘withholding’ party had not satisfied the burden of proof in establishing reasonably contemplated or anticipated litigation as the dominant purpose of the relevant categories of documents over which privilege was sought (applying West London Pipeline).
This judgment serves as a useful reminder on the law on litigation privilege; of the difficulties in protecting pre-action documents from inspection; and of the detailed consideration the courts will give the evidence in support of an application asserting litigation privilege (Tchenguiz and West London Pipeline).
This judgment is a useful reminder of the legal principles of litigation privilege. Put very simply, the party seeking to rely on litigation privilege (and on whom the burden of proof lies) must persuade the court that those documents or categories of documents were created for the dominant purpose of seeking and/or obtaining advice and/or evidence or information in relation to contemplated or anticipated litigation and that such anticipated litigation was 'real' as opposed to a mere possibility or a general apprehension of future litigation. (See paragraph 11 of the judgment for further details on the principles and key authorities on litigation privilege.)
This application is also a further reminder of the difficulties in seeking to protect disclosable pre-action documents from inspection during any subsequent proceedings. It gives rise to a number of practical tips, including:
This article was first published on Lexis®PSL Dispute Resolution on 24 January 2014. Click here for a free 24 trial of Lexis®PSL.
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