'Dominant purpose' litigation privilege rejected (Starbev v Interbrew)

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 [2014] All ER (D) 116 (Jan), [2013] 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).

Practical implications

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:

  • be aware the courts will very carefully scrutinise any witness statements filed in support of any 'privilege' contention and will cross-reference any such statement with the contemporaneous material available. Therefore, ensure:
    • documents (including communications) you create at the time of seeking and/or obtaining the relevant advice and/or evidence would support any later 'dominant purpose' and 'genuinely contemplated or anticipated litigation' contentions
    • any document or communication on which litigation privilege is sought clearly states it is both confidential and created for the purpose of litigation
    • draft (or update) retainer letters to professional advisers to state explicitly that the advice sought is for the purpose of the anticipated litigation
    • ensure all steps you take at the time of seeking and/or obtaining the relevant documents would support any contention that you genuinely contemplated or anticipated litigation. This could include taking steps to ensure you comply with disclosure obligations, eg instructing key personnel to preserve all potentially disclosable documents, warning relevant parties as to the dangers of waiving privilege, warning relevant parties as to the dangers of creating potentially disclosable documents, etc. For further guidance, see Draft memo about disclosure and privilege
    • any advice or fact-finding being sought or undertaken because you have concerns of specific litigation should state this clearly in the communications relating to that advice or exercise
  • carefully consider the date from which you contend litigation privilege applies. It may be sensible to consider 'alternative dates' in the event the court does not accept your primary position on this. Where appropriate, consider seeking agreement from the other parties on this date
  • proceed cautiously and assume that, irrespective of taking all possible steps to protect these documents from inspection, they may still be capable of being inspected in any subsequent proceedings
  • consider whether any other type of privilege (eg legal advice privilege) might attach instead and, if so, take all appropriate steps to seek to secure such protection.

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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