United States of America v Philip Morris Inc. & Ors

I have before me applications by the United States of America for orders that two witnesses, Mr. Andrew Foyle and Mr. Martin Broughton, be examined for the purposes of making their evidence available in proceedings currently pending before the United States District Court for the District of Columbia pursuant to letters of request issued by that court. The applications have been made on notice to the witnesses because it was thought, correctly as it turns out, that they would be opposed and that, if orders for examination were made without notice, applications would inevitably be made to set them aside. British American Tobacco (Investments) Ltd (“BATCo”), which is one of the parties to the litigation in the United States for the purposes of which the evidence is sought, has been given permission to intervene to enable it to assert claims for privilege in respect of confidential communications which it fears Mr. Foyle may be asked to disclose if an order for his examination is made.

The action in relation to which the evidence is sought involves a claim by the Unites States of America against a number of tobacco companies under the Racketeer Influenced and Corrupt Organisations law, 18 U.S.C. §1962, and is one of the largest cases ever brought in a United States court. By way of illustration, it is said by Ms Sharon Eubanks, the director of the tobacco litigation team at the Department of Justice who has made a number of statements in support of the applications, that the sum claimed is at least US$289 billion and that in the region of 40 million documents will be produced in the course of discovery. The United States alleges that since 1953 the tobacco companies have 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. The United States says that as part of that unlawful enterprise the companies, among other things, suppressed information available to them that smoking was addictive and was, or might be, injurious to health, manipulated the nicotine levels in cigarettes, and made false statements about the research they were undertaking and their readiness to communicate the results to the public. Ms Eubanks says in her first statement that an important part of the United States’ case is that the tobacco companies took active steps to ensure that documents which they thought might damage them in any litigation were destroyed or suppressed to ensure that they could not be disclosed. In particular, the companies are alleged to have systematically destroyed certain kinds of documents, to have sent others out of the jurisdiction to put them beyond the reach of the courts, and to have routed some communications through their lawyers with ‘confidential’ or similar markings to enable them to claim legal professional privilege in respect of them. The companies are also accused of having interfered with the integrity of scientific research into the effects of smoking on health by causing it to be directed, edited and controlled by their lawyers.

Among the defendants to the action in Washington D.C. are two companies in the British American Tobacco group, Brown & Williamson Tobacco Corporation, an American company, and BATCo, an English company, both of which are ultimately owned by British American Tobacco plc (“BAT plc”). BAT plc was incorporated on 23^rd July 1997.

Mr. Foyle is a solicitor and a partner in the firm of Lovells. He is a litigation specialist and acted for various companies in the BAT group between about November 1985 and May 1994 when he moved from London to Lovells’ office in Hong Kong. Mr. Broughton had held several senior positions in the BAT group, culminating in his appointment as chairman of BAT plc in February 1998.

Tobacco litigation is not confined to the United States. In October 2001 Mrs. Rolah McCabe brought an action in the Supreme Court of Victoria against British American Tobacco Australia Services Ltd (“BATAS”) seeking damages for personal injury caused by smoking. On 6^th February 2002 Eames J. struck out BATAS’s defence on the grounds that it had prevented the plaintiff from obtaining a fair trial by destroying potentially relevant documents at a time when it faced impending litigation. In his judgment Eames J. referred at some length to the part played by Mr. Foyle in advising the BAT group’s companies in Australia and quoted extensively from a document which has since become known as the ‘Foyle memorandum’ to which it will be necessary to refer more fully at a later stage. On 6^th December 2002 the judgment of Eames J. was reversed on appeal, but in the meantime matters had moved on in the United States.

Following the delivery of judgment by Eames J. in the McCabe case the United States notified BATCo that it wished to take a deposition from Mr. Foyle and asked it to make him available for that purpose. Since Mr. Foyle was not an employee of BATCo, that request was refused. Requests to make available Mr. Broughton and another witness, Mr. Nicholas Cannar, formerly company secretary and head of BATCo’s legal department, were also refused. Accordingly, on 1^st July 2002 the United States applied by motion for letters of request to be issued in respect of Mr. Foyle, Mr. Broughton and Mr. Cannar. The letters of request relating to Mr. Foyle and Mr. Broughton were directed to this court; the letter of request relating to Mr. Cannar was directed to the Supreme Court of New South Wales, Mr. Cannar then being resident in Australia.

In its motion applying for a letter of request in relation to Mr. Foyle the United States set out the grounds on which it made its application. They included an assurance that it sought evidence for use at trial rather than evidence in the nature of pre-trial discovery and an assertion that Mr. Foyle’s evidence was necessary for the just disposal of the case because he had played a “central role in the creation and implementation of document destruction policies implemented to protect BAT and its affiliates, including BATCo and Brown and Williamson”. No evidence was offered in support of that allegation, but the draft letter of request submitted to the court with the application included the following recital:

“WHEREAS, an attorney’s providing advice on how to destroy documents relevant to current and anticipated litigation, amounts to the furtherance of a crime or fraud. In the United States and other jurisdictions (including the United Kingdom), such conduct obviates any attorney-client or legal professional privilege that might otherwise attach to such advice. . . . . . . . . Likewise, an attorney’s advising a client to have scientists route their contacts “through the lawyers” so that privilege could be asserted for scientific communications is an improper practice and a fraud upon any court in which such privilege is asserted. For these reasons, the legal professional and attorney-client privileges do not stand in the way of Mr. Foyle’s being required to give testimony.”

All three applications were opposed before the District Court on the grounds that they were in reality attempts to obtain discovery after the deadline for that stage of the proceedings had passed. In addition BATCo objected to the inclusion in any letter of request of a recital in the terms set out above on the grounds that it amounted to a finding by the court that what is known in the United States as the ‘crime-fraud exception’ to the right to claim privilege applied in this case without there having been any proper investigation into the matter.

The applications were referred for consideration to Special Master Levie. He recommended that no letter of request be issued in respect of Mr. Broughton and that a letter of request in modified form be issued in respect of Mr. Foyle. He specifically recommended that the proposed recital referring to the crime-fraud exception be omitted from the letter of request issued in relation to Mr. Foyle and his recommendation was accepted by Judge Kessler. On 3^rd October 2002 Judge Kessler issued letters of request in respect of Mr. Foyle, Mr. Broughton and Mr. Cannar.

On 9^th December 2002 an application was made ex parte before James J. in the Supreme Court of New South Wales for an order for the examination of Mr. Cannar pursuant to the letter of request. The judge granted the order and an application to set it aside was subsequently made inter partes before Bell J. on 4^th June 2003. On 8^th October 2003 she delivered a lengthy judgment refusing to set aside the order of James J., but holding that certain documents, in particular the Foyle memorandum, remained privileged despite the fact that their contents had been made public to a greater or lesser degree. I understand that an appeal is pending against her decision.

Meanwhile, back in Washington there had been further disputes arising out of BATCo’s claim to privilege over certain documents. One of the documents under consideration was a memorandum (“document 182”) written by Mr. Foyle to Mr. Cannar in September 1989 relating to the strategy to be adopted in preparing a defence to a pending patent action and the implications of that action for smoking and health litigation. The Special Master held that in principle document 182 was privileged, but that the crime-fraud exception applied because it had been prepared “in furtherance of BATCo’s concealment of documents related to smoking and health”. However, on 27^th August 2003 Judge Kessler overturned that finding as “clearly erroneous”, concluding that the advice contained in document 182 fell within “the generally accepted bounds of tactical legal planning engaged in by sophisticated corporate counsel”.

I have described the background to the present application at some length because many of the submissions made in the course of argument were based on these aspects of the proceedings in the United States and Australia to which it will be necessary to refer more fully in due course.

There was little dispute between the parties as to the principles to be applied when considering an application of this kind. They are summarised by Waller L.J. in paragraphs 28-32 of the judgment of the Court of Appeal in Genira Trade and Finance Inc v Refco Capital Markets Ltd [2001] EWCA (Civ) 1733. In particular, it is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the Evidence (Proceedings in other Jurisdictions) Act 1975 (“the 1975 Act”) from which the jurisdiction to make orders of this kind is derived. One of the restrictions imposed by the Act which has assumed considerable importance in the present case relates to privilege. This is preserved by section 3(1)(a) of the Act which provides as follows:

“A person shall not be compelled by virtue of an order under section 2 above to give evidence which he could not be compelled to give-

(a)

in the part of the United Kingdom in which the court that made the order exercises jurisdiction;”

Moreover, the authorities make it clear that the court must not only observe the restrictions imposed by the 1975 Act; it must also hold a fair balance between the interests of the requesting court and the interests of the witness: see per Lord Woolf M.R. in The State of Minnesota v Philip Morris Inc. [1997] I.L.P. 170, 176.

It was not disputed that Mr. Foyle can give relevant and admissible evidence bearing on the issues in the litigation now going on in Washington D.C., but the application for his examination was resisted on two grounds: privilege and oppression. Before turning to consider each of these, however, it is necessary to say something about Mr. Foyle’s personal position.

Mr. Hapgood Q.C. rightly drew my attention to the allegations of crime-fraud made against Mr. Foyle in the United States’ motion for the issue of a letter of request and the draft letter exhibited to it and to the fact that Judge Kessler (adopting the recommendation of the Special Master) had refused to include the offending passages in the letter of request. He also drew my attention to the fact that in her first witness statement dated 7^th July 2003 Ms Eubanks had set out at some length the conclusions of Special Master Levie in relation to document 182, apparently as the basis for pursuing an allegation of impropriety against Mr. Foyle. Given the way things stood at the time that statement was made, that does not seem to me to be a matter for criticism.

In a statement made on 16^th September Mr. Foyle drew attention to Judge Kessler’s decision of 27^th August overturning the decision of Special Master Levie and by implication invited Ms Eubanks to withdraw the allegations against him. However, when she returned to the matter in her third statement made on 14^th October Ms Eubanks expressed the opinion that Judge Kessler had not overturned the Special Master’s finding of crime-fraud as such but had simply disagreed with his conclusion that document 182 had been created in furtherance of the fraud alleged by the United States in these proceedings. That observation, coupled with the statement that “the United States has no present intention of bringing criminal or civil proceedings against Mr. Foyle” (my emphasis), naturally gave rise to some concern on the part of Mr. Hapgood (and no doubt Mr. Foyle himself) that the allegations were being persisted in and that his position might not be entirely secure.

Had this matter not been satisfactorily resolved, Mr. Hapgood would no doubt have submitted with some force that it would not be right to make an order the effect of which would be to compel Mr. Foyle to give evidence about matters in relation to which he might be the subject of civil or criminal proceedings at a later date. However, shortly before the hearing began the United States procured immunity from prosecution for Mr. Foyle in relation to these matters, thereby lifting one of the threats against him. Moreover, at an early stage of the hearing itself Mr. MacLean Q.C. confirmed that the United States does not intend to bring civil proceedings against him either and indicated that he was authorised to give an undertaking to that effect. He also made it clear that the United States did not make any allegation of improper conduct against Mr. Foyle and was not seeking any finding to that effect. In those circumstances I am satisfied that the position of Mr. Foyle and of Lovells is sufficiently protected.

The primary ground on which the application is resisted root and branch is that of legal professional privilege. Mr. Hapgood and Miss Barbara Dohmann Q.C. who appeared for BATCo submitted that all communications passing between Mr. Foyle and BATCo and other members of the BAT group were covered by both legal advice privilege and litigation privilege. Accordingly, Mr. Foyle could not be required to answer any questions on any of the matters identified in the letter of request unless BATCo waived privilege and since BATCo did not intend to waive privilege, it would be a waste of time and money to make an order for his examination.

Mr. MacLean recognised that Mr. Foyle might well be entitled to refuse to answer many of the questions that the United States might wish to put to him, but he submitted that the right course was for objections to be raised and for privilege to be invoked as specific questions were asked and that it would not be right for the court to accede to a blanket assertion of privilege at this stage. I can see much force in that argument. Although BATCo is entitled to waive privilege if it so chooses, I have little doubt that it will not do so and that I should approach this application on the assumption that objection will be taken to Mr. Foyle’s answering any question that touches on the substance of the matters described in the letter of request. Nonetheless, until specific questions are asked the problem remains theoretical rather than practical and it is difficult to be confident that every assertion of privilege will be well-founded.

Mr. MacLean submitted that a blanket objection of this kind is contrary to the terms of section 3 of the 1975 Act which, he submitted, contemplates that claims to privilege are to be taken as and when questions are put to the witness. I accept that section 3 naturally contemplates that an order for the examination of the witness will already have been made by the time any question of privilege arises, but I think his submission mistakes the nature of Miss Dohmann’s argument which is that it would be pointless in this case to make an order for the examination of Mr. Foyle because he could not be required to answer any question of substance put to him. In most cases the issue of privilege is unlikely to be of such potentially wide significance and so there will rarely be any basis for making a submission of the kind made by Miss Dohmann. Nonetheless, if the court were satisfied on the evidence before it that the exercise would indeed be pointless because the witness could and would refuse to answer any questions of substance put to him, I can see no reason why in the exercise of its discretion it should not refuse to make an order for his examination. No doubt such a course would only be justified in the clearest case. Miss Dohmann, however, submits this is such a case and in order to determine whether that is so or not it is necessary to examine the range of subjects on which the United States wishes to question Mr. Foyle and the circumstances in which the communications about which he may be questioned occurred.

The matters on which Mr. Foyle’s evidence is sought are described in the letter of request. The five main categories (each of which is broken down into several sub-categories) are:

“1.

The creation of the document management policy.

2.

The implementation of the document management policy.

3.

Rules and procedures set forth by the document management policy.

4.

Destruction of smoking and health documents that pertain to BATCo’s and Brown & Williamson’s litigation position in the United States.

5.

Transportation, routing, storage and warehousing of documents.”

Some of these, such as the creation of a document management policy, could obviously involve communications of a privileged nature; others, such as arrangements for the transportation, routing, storage and warehousing of documents seem less likely to do so. In each case, however, whether any particular communication is privileged will depend on its particular nature and the circumstances under which it occurred.

In his witness statement Mr. Foyle says that all the work he undertook for the BAT companies involved giving general legal advice in relation to the nature and scope of claims by smokers and in relation to the obligation of disclosure under English law (whether in litigation in England or pursuant to letters of request) or giving legal advice directed specifically to the conduct of proceedings, whether existing or in contemplation. On that basis he says that all communications between himself and the BAT companies are privileged. Mr. Foyle’s general account of the circumstances in which he acted for the BAT group was not challenged by Mr. MacLean.

Miss Dohmann submitted that it is virtually unprecedented for one party to litigation to seek to call evidence under compulsion from an opposing party’s solicitor. That is no doubt correct because all lawyers are well aware of the rules relating to privilege and are inclined to assume, as I think Mr. Foyle has in this case, that all communications made by and to a lawyer and all information obtained by him when acting for his client are privileged. However, recent decisions in this court and in the Court of Appeal make it clear that the court is not bound by the lawyer’s own assessment of the position and that it may be necessary to adopt a rather more critical approach to the question than has hitherto been the case.

It is necessary at this stage, therefore to refer to a little more of the evidence of the circumstances in which Lovells came to act for the BAT group and the nature of the advice and assistance they were asked to give.

In support of its submission that no order should be made for Mr. Foyle’s examination BATCo relies on evidence from its current senior litigation counsel, Mr. Martyn Gilbey. He says that Lovells’ advice was sought by BATCo and BAT (UK & Export) Ltd in November 1985 in relation to a review of its documents that was being put in hand in anticipation of litigation and of the need to give discovery. That was in part because Brown & Williamson had been involved in tobacco litigation in the United States. Accordingly, BATCo decided to instruct solicitors to advise it about the nature and scope of its potential liability in relation to claims by smokers and how it might best defend itself against them. Mr. Gilbey says that in carrying out those instructions Mr. Foyle and his team collected and analysed many thousands of BATCo research documents to evaluate their relevance to claims that might be made by smokers. Mr. Foyle also drafted reports, memoranda and analyses which set out his views on those matters. The review of the Research & Development files which became known as “Project Discovery, Phase I” was conducted between 1986 and 1989. The main purpose, apparently, was to identify those of the files that had been brought into existence before the end of 1986 which were likely to contain documents that would be disclosable in smoking and health litigation.

Project Discovery, Phase II was carried out in a similar way, this time on Research & Development files created from the end of 1986 onwards and files from other departments dating back to 1954. Mr. Foyle was involved in planning Phase II, but ceased to be involved in its execution in May 1994 when he left to work in Hong Kong.

Mr. Gilbey’s account is reflected in some of the documents exhibited to the letter of request. The request itself sets out at some length the United States’ allegations relating to the document management policy on which it wishes to obtain Mr. Foyle’s evidence and a number of documents are exhibited in support. They include a memorandum dated 10^th September 1985 written by Mr. Cannar and another member of BATCo’s legal department setting out the course of action to be taken in response to the risk, as they saw it, that orders for discovery of documents produced by the Research & Development department would be made against Brown & Williamson in proceedings then pending in the United States. Although at that time no proceedings had been commenced or threatened against any members of the group outside the United States, it is apparent from that memorandum that Mr. Cannar was concerned that documents held by the Research & Development department were likely to be relevant to any product liability actions begun in Europe or elsewhere. According to the memorandum there had never been a full review of the department’s files and he therefore considered it important to put such a review in hand at once with a view to assessing their contents. In order to review the documents from a European perspective Mr. Cannar proposed to instruct a firm of solicitors to provide advice and additional manpower. The firm he instructed was Lovells and the partner who dealt with the matter was Mr. Foyle.

Another document exhibited to the letter of request is a note of a meeting between Lovells and members of the BATCo legal department on 15^th May 1986. It is headed ‘Privileged and Confidential’ but has since been disclosed in proceedings between the State of Minnesota and various tobacco companies including BATCo (“the Minnesota action”) to which it will be necessary to refer in more detail at a later stage. The purpose of the meeting was to discuss the form of the discovery exercise, the steps necessary to begin the document review and the preparation of a “defence package” to be used if BATCo became involved in direct or indirect legal action relating to smoking and health.

The nature of the exercise that BATCo was seeking to carry out is described in the note of the meeting. Mr. Cannar wanted BATCo to be able to respond to orders for discovery or interrogatories to the same extent as Brown & Williamson whose documents had already been reviewed by its American lawyers. It appears that he appreciated that that might well require a more extensive exercise than would have been necessary for the purposes of complying with similar orders in England or other European jurisdictions. As a first step, therefore, it was proposed that Mr. Foyle should meet the American lawyers to find out how they had gone about their document review. The question of destruction of documents arose and according to the note it was decided that no destruction policy should be adopted. There would, however, be a “spring clean”

“which could involve the destruction of documents such as previous drafts.”

It was agreed that the legal department would circulate a note to the Research & Development department along lines to be suggested by Lovells instructing people to tidy up their files and loose documents, including documents held outside the official filing systems. Lovells would co-ordinate the systematic copying of the files for review by lawyers with the assistance, where necessary, of scientists. Mr. Foyle described the organisation and structure of the team he thought would be necessary to carry out an exercise of that kind efficiently. It was agreed that the creation of the “defence package” should be postponed.

Towards the end of the meeting BATCo asked Lovells to advise it of the ways in which an American plaintiff could obtain disclosure of documents in this country, how BATCo might delay or resist any applications for disclosure and what the consequences of doing so might be. It seems that Lovells may have already given some advice in that area but that it had not given advice on tactical questions. One exercise on which Lovells appear to have already carried out quite a lot of work was a description of the current structure of the Research & Development department which was intended to assist in identifying where documents might be kept.

The next document exhibited to the letter of request is a letter from Mr. Foyle to Mr. Thornton at the Research & Development centre at Southampton dated 21^st March 1988 on the subject of Buerger’s disease, an illness said to be related to smoking. In the last paragraph of that letter Mr. Foyle reminded Mr. Thornton that contact between the scientists employed by different tobacco companies should be routed through their lawyers to ensure that privilege in the communications was not lost. He also told him to ensure that any internal memoranda written on Buerger’s disease in relation to the current investigations should be marked ‘Privileged and Confidential’.

These last two documents are particularly informative, both because they provide a contemporaneous insight into the nature of the advice and assistance being provided to BATCo by Lovells at an early stage in their relationship and because they shed light on BATCo’s assessment of the likely development of tobacco-related litigation in the United States and elsewhere.

As a result of enquiries made by Mr. Gilbey during the hearing it has been confirmed that Brown & Williamson was a party to the first tobacco claim made in the United States in March 1954. That action was dismissed later the same year. By the end of 1985 over 200 smoking and health actions had been brought against tobacco companies in the United States of which about a quarter had been started in that year alone. Most had been dismissed, but over 70 actions were still pending. By the middle of 1986 there were 120 actions pending including 20 in Texas involving Brown & Williamson.

It is convenient to consider first what is usually called ‘legal advice’ privilege, that is, the privilege that attaches to confidential communications between lawyer and client for the purposes of obtaining legal advice. This ground of privilege has recently been considered by the Court of Appeal in Three Rivers District Council v Bank of England (No. 5) [2003] EWCA Civ 474; [2003] 3 W.L.R. 667. The question for the court in that case was whether privilege attached to certain documents brought into being by the Bank of England in connection with the Bingham Inquiry into the collapse of BCCI. Four classes of documents arose for consideration: documents prepared by Bank employees with the intention that they should be sent to the Bank’s solicitors and which had been sent to them; documents that were said to have been prepared with the dominant purpose of obtaining legal advice, but which had not been sent to the solicitors; documents prepared otherwise than for the dominant purpose of obtaining legal advice but which had been sent to the solicitors; and documents in all those categories that had been prepared by Bank employees who were no longer employed by the Bank. Having considered the authorities, the Court of Appeal held that legal advice privilege is restricted to communications passing between the client and his legal advisers for the purpose of requesting and communicating legal advice, to documents evidencing such communications and documents intended to be such communications. Accordingly, none of the categories of documents with which the court was concerned was privileged.

The precise ambit of what constitutes legal advice for these purposes was considered by Tomlinson J. in a further application for disclosure in Three Rivers District Council v Bank of England [2003] EWHC 2565 (Comm). In the light of the Court of Appeal’s judgment in relation to the previous application the claimants sought disclosure of documents passing between the Bank and the solicitors advising it in connection with the Bingham Inquiry which, as can be seen from paragraphs 4 and 29 of that judgment, they had previously accepted were privileged. The application was made on the basis that many of those communications were concerned not with seeking or giving legal advice but with the manner in which the Bank’s evidence should be presented to the Inquiry. Having considered paragraphs 32-37 of the judgment in which the Court of Appeal considered the purpose for which the documents in question had been prepared, Tomlinson J. concluded that communications between client and solicitor are privileged only if they were made for the dominant purpose of obtaining and communicating legal advice in the narrow sense of advice about the client’s rights and obligations. I respectfully agree with that conclusion.

In my view it follows from these decisions that before legal advice privilege can be claimed in respect of any communication three conditions must be satisfied: (i) the communication must pass between the lawyer and his client; (ii) it must be confidential; and (iii) it must be for the dominant purpose of obtaining or giving legal advice, that is, advice about the client’s rights and obligations. Moreover, the Court of Appeal has made it clear that the solicitor’s own assertion that the dominant purpose of a particular communication was the obtaining of legal advice is not conclusive; it is a matter for the court to determine on the basis of the whole of the evidence before it: see per Longmore L.J. at page 691 (para. 35). Miss Dohmann reminded me of the observation made by Taylor L.J. in Balabel v Air India [1988] Ch. 317, 330 about the ‘continuum of communications’ (to which the Court of Appeal itself referred in the Three Rivers case) in support of her submission that the privilege should not be unduly restricted. I would accept that nothing said by the Court of Appeal in the Three Rivers case can be read as detracting from what was said in Balabel v Air India and that the court should be careful not to allow incursions into what should properly be viewed as a continuous sequence of communications made for the dominant purpose of obtaining legal advice. However, in my view the decisions in the Three Rivers case do highlight the fact that it is necessary to approach a claim of legal advice privilege in a rather more critical manner than has perhaps been the case in the past.

In the present case the evidence strongly suggests that many of the communications between Mr. Foyle and BATCo are protected by legal advice privilege. For example, communications between Mr. Foyle and Mr. Cannar concerning the law relating to the disclosure and inspection of documents, privilege and related matters and their application to the particular circumstances of the BAT group would on the face of it all fall within the scope of legal advice privilege, as Mr. MacLean quite properly recognised. However, the evidence also suggests that Mr. Foyle and his team from Lovells may have given advice and assistance on matters such as the organisation and implementation of the review of documents which less clearly fall within its scope. Moreover, without knowing the identity of the person with whom Mr. Foyle communicated in any given case it is not possible to say whether that person is properly to be regarded as his client for these purposes. Similarly, without further information about the general nature of the communication or the context in which it occurred, it is not possible to determine whether it was made for the dominant purpose of giving legal advice. Matters of that kind should be easier to decide in the context of specific questions. In order to succeed on this ground, however, it is necessary for BATCo to show that its assertion of legal advice privilege would prevent Mr. Foyle from answering any question of substance about its document management policies or procedures. In my judgment that is not so clearly the case as to justify refusing to make an order for his examination.

I turn next to the question of litigation privilege. Miss Dohmann submitted that all communications that passed between Mr. Foyle and employees of the BAT group (or indeed anyone else) relating to tobacco litigation are covered by litigation privilege. In this case two requirements must be satisfied: (i) the communication must be confidential; and (ii) it must have been made for the dominant purpose of conducting or giving advice in relation to litigation, either pending or in contemplation.

Miss Dohmann and Mr. Hapgood submitted that all the communications between Mr. Foyle and BATCo (and indeed other companies in the group) were confidential and were made in contemplation of litigation. Mr. MacLean submitted, however, that when Lovells were first instructed, and indeed for much of the period during which Mr. Foyle was advising BATCo, no litigation had been commenced against it or even threatened. One question that arises for decision at this stage, therefore, is the extent to which litigation must be in contemplation in order to claim privilege in respect of confidential communications.

The leading authority on litigation privilege is Waugh v British Railways Board [1980] A.C. 521. The House of Lords was not directly concerned in that case with the likelihood of litigation, but Lord Simon and Lord Edmund Davies referred with approval to a passage in the judgment of Barwick C.J. in the High Court of Australia in Grant v Downs (1976) 135 C.L.R. 674 in which he referred to documents produced at a time when litigation was ‘in reasonable prospect’. Subsequently in Re Highgrade Traders [1984] B.C.L.C. 151 the Court of Appeal, having considered a number of earlier authorities including Waugh v British Railways Board, held that litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect: see per Oliver L.J. at page 172. That test has been applied in many subsequent cases.

I see little reason to doubt that by 1985 the increasing volume of tobacco litigation in the United States, coupled with the fact that a significant number of claims were being made against Brown & Williamson, had alerted BATCo to the need to consider its own position. The documents to which I have referred and the evidence of Mr. Gilbey show that BATCo was aware that it might be required to disclose documents generated by the group’s Research & Development department in litigation against Brown & Williamson in the United States and that in due course similar claims might be made against BATCo itself or other companies in the group in the United States or elsewhere. (BATCo had in fact been joined in one action in Chicago in 1969 but it had been dismissed as a defendant at an early stage.)

In the event those fears were justified, though litigation against BATCo did not begin until some years later. In August 1994 BATCo was made a party to the Minnesota action and in 1996 it was made a party to similar proceedings in Oklahoma and Washington. (The Minnesota action was finally settled in May 1998 on terms which included giving public access to a large number of documents disclosed during the course of the proceedings.) The present action in Washington D.C. was started in September 1999. Despite the rising number of claims made against tobacco companies in the United States, however, there is no evidence that any proceedings were brought elsewhere against companies in the BAT group until the latter part of 1990. This was not a matter that was directly covered in the evidence filed on behalf of BATCo, but my attention was drawn to paragraphs 57-60 of the judgment of Eames J. in the McCabe case in which he refers briefly to four actions brought against W.D. & H.O Wills Ltd, the predecessor of BATAS, in Australia between November 1990 and some time in 1999. Mrs. McCabe started her action against BATAS in the Supreme Court of Victoria in October 2001.

Miss Dohmann submitted that in these circumstances all communications passing between Lovells and BATCo and between Lovells and third parties between late 1985 and May 1994 relating to the document review procedures were made for the dominant purpose of preparing for litigation already in contemplation and are therefore in principle subject to litigation privilege. In relation to any given communication that depends primarily on whether litigation was reasonably in prospect at the time in question, although issues relating to its dominant purpose might also arise. Miss Dohmann submitted that litigation was indeed reasonably in prospect throughout the period of Mr. Foyle’s involvement, both because BATCo could itself expect to be sued in America and elsewhere before long and because it could expect that applications for disclosure would be made against it in proceedings to which it was not itself a party.

It has been recognised on many occasions that there is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court: see, for example, Lord Wilberforce in Waugh v British Railways Board at page 531-532 and Lord Simon at pages 535-537. The point at which litigation should be regarded as sufficiently likely for confidential communications between client and his lawyer to attract privilege on this ground therefore involves striking an appropriate balance between these two factors. The requirement that litigation be ‘reasonably in prospect’ is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.

I am unable to accept that litigation against BATCo itself was reasonably in prospect in 1985 and 1986 when Lovells were first instructed. I quite accept that at that time Mr. Cannar thought it a distinct possibility that sooner or later someone might make a claim against BATCo for smoking-related illness, if only because the burgeoning litigation in the United States could be expected to provide an example to claimants in other countries, but at that stage no claim had been made or even threatened. The fact that Mr. Cannar considered it desirable for BATCo to put its house in order because of a general apprehension of future litigation is not in my view sufficient to entitle it to claim litigation privilege in respect of communications made for that purpose. As time went on, of course, the position changed, but it is sufficient for present purposes to say that I am not persuaded that all communications which Mr. Foyle might be asked to disclose in the course of the proposed examination are inevitably privileged on this ground.

As to Miss Dohmann’s second argument, it is clear from the authorities that the justification for litigation privilege lies in the adversarial nature of legal proceedings: see In re L (a Minor) (Police Investigation: Privilege) [1997] A.C. 16. An application by one party to legal proceedings against a person who is not a party to those proceedings to compel him to give evidence or to produce documents is in my view essentially adversarial in nature. It follows that confidential communications between a solicitor and his client or a third party for the dominant purpose of considering, preparing or conducting a defence to such an application are covered by litigation privilege. It does not necessarily follow, however, that all communications relating to an application of that kind necessarily fall to be treated in the same way. The fact that disclosure is required for the purposes of litigation between third parties would not of itself be sufficient in my view to attract litigation privilege; what is required is that the communications be made for the preparation or conduct of litigation involving the solicitor’s own client. Accordingly, practical advice about the best way of complying with an order for disclosure once it had been made might well not be covered by litigation privilege. Again, issues of that kind are better addressed in the context of specific questions as and when they are put to the witness. In the present case the United States wishes to question Mr. Foyle about steps taken by BATCo to review and organise its documents. Some communications on that subject may be privileged, but others may not. It is sufficient for present purposes that Miss Dohmann has not satisfied me that it would be pointless to make an order for the examination of Mr. Foyle because he could properly refuse to answer any question of substance on the grounds of litigation privilege.

Since I have already reached the conclusion that I should not refuse to make an order for the examination of Mr. Foyle on the grounds of privilege it is unnecessary to consider the question whether and to what extent privilege in respect of certain communications has been lost as a result of the disclosure of documents in proceedings in the United States and Australia. However, I think it desirable that I should deal with the arguments shortly.

In response to BATCo’s assertion of privilege the United States has contended that communications evidenced by documents that have entered the public domain have ceased to be confidential and have therefore ceased to be privileged. The documents relied on for that purpose at the hearing before me were those exhibited to the letter of request which entered the public domain as a result of the Minnesota action and certain passages from the ‘Foyle memorandum’ from which Eames J. quoted extensively in his judgment in the McCabe case. Miss Dohmann’s response was twofold: first, that the documents remain privileged because BATCo has never voluntarily waived its right to privilege; secondly, that even if some of them are no longer privileged, it does not follow that Mr. Foyle can be required to answer questions of any kind about the matters with which they deal.

Many documents entered the public domain in the United States by one of the following two routes which are described by Judge Kessler in her Memorandum Opinion delivered on 17^th May 2002: (a) the production of documents to the House Commerce Committee chaired by Congressman Thomas Bliley and their subsequent publication on the Committee’s web site; and (b) the production of documents in the Minnesota action pursuant to orders of the court and their subsequent release to the public under the terms of a consent judgment by which the action was terminated.

It is unnecessary to describe in any detail the circumstances which led to the production of documents by either route. Suffice it to say that, having obtained by the issue of sub-poenas against the tobacco companies a number of documents in respect of which the Minnesota courts had rejected claims for privilege, the House Commerce Committee made them freely available to the public on its web site. These have become known as the ‘Bliley documents’. They did not, however, include any of the documents in respect of which BATCo claims privilege.

About a month after the publication of the Bliley documents the parties to the Minnesota action reached a settlement that was embodied in a consent judgment. It was a term of that judgment that documents disclosed in the action (which included the Bliley documents) should be made available to the public on certain terms and that the plaintiffs should be entitled to seek the court’s approval to making public those documents in respect of which privilege had been claimed but denied. In November 1998 the court in Minnesota gave the plaintiffs permission to release those documents (the “Minnesota documents”) to the public.

In her Memorandum Opinion Judge Kessler held that the defendants could not claim privilege over any of the documents that had been published in either of those ways. In the case of the Bliley documents she held that the companies had not taken sufficient steps to assert their claim to privilege before the Committee and had thereby waived any right they may have had. More importantly, perhaps, as far as the present application is concerned, she held that the defendants had waived any right to claim privilege in respect of the Minnesota documents by agreeing to the terms of the consent judgment giving the court the authority to release them to the public. I would respectfully agree with that conclusion insofar as it turns on the facts surrounding the publication of the documents. Mr. MacLean submitted that Judge Kessler’s decision finally decides the issue of privilege as between BATCo and the United States, but that cannot be right as far as privilege under English law is concerned since that was not in issue before her. Judge Kessler was concerned with the right to privilege under United States law. In the present case, by contrast, I am only concerned with whether BATCo is entitled to claim privilege in accordance with the principles of English law which can be invoked by virtue of section 2 of the 1975 Act. For the same reasons it cannot be said that it would be contrary to comity or to the orderly and just disposal of the application to allow BATCo to put forward a blanket assertion of privilege on the grounds that it had failed to advance it before the District Court in opposition to the motion for the issue of the letter of request. The issue is one that arises only in this country at the time when the application for an order giving effect to the letter of request is made.

Judge Kessler also considered the matter from a broader public policy perspective and came to the conclusion that it would be anomalous if documents to which the general public had unfettered access could not be used in the litigation. In my view there is considerable force in that argument. Miss Dohmann submitted that one can draw a distinction for these purposes between making documents available to those who have the knowledge and persistence to find them and publication of the kind that brings them to the attention of the public at large, but in my view that is both unrealistic and wrong in principle. Confidentiality is one of the essential foundations of privilege, the purpose of which is to enable evidence of communications to be withheld precisely in order to preserve their confidentiality. Once documents are available to the public at large with no, or minimal, restriction, they can no longer be regarded as confidential and it would be an affront to common sense as well as contrary to the interests of justice to prevent their use in litigation. Miss Dohmann submitted that the mere fact that information is available on the internet is not sufficient to deter the court from seeking to protect it by injunction, relying on the decision in Venables v News Group Newspapers [2001] Fam. 430, but that case raised very different considerations and is of little assistance in the present case.

However, I agree with Miss Dohmann that the mere fact that privilege in any particular document has been lost does not mean that a witness can be questioned without restriction on the matters to which it refers. Whether, and if so and to what extent, privilege has been waived in relation to related communications will depend on the particular circumstances of the case. Again, however, that can best be determined in the context of a specific line of questioning at the time the witness gives evidence.

The Foyle memorandum raises rather different questions. Early in 2002 Mrs. McCabe made an application to strike out the defence in her action against BATAS on the grounds that the defendant had deprived her of a fair trial by destroying relevant documents. In the course of the hearing Eames  J. ruled that by exhibiting certain documents to an affidavit sworn in opposition to the application BATAS had waived privilege in relation to legal advice received since early in 1990. That led to the disclosure of a number of documents including the Foyle memorandum from which the judge quoted extensively in the course of his judgment. That judgment is publicly available, for example on the AUSTLII web site.

The judgment of Eames J. was reversed on appeal under the name of British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197. The Court of Appeal declared that privilege over the Foyle memorandum had not been waived and the respondent was ordered to return it to BATAS together with any copies she had made. To the extent possible, therefore, the cat was put back into the bag, but Mr. MacLean submitted that in reality those parts of the Foyle memorandum that had been quoted by Eames J. had lost any confidentiality they had previously possessed and could no longer be the subject of a claim for privilege.

Since the Foyle memorandum ought not to have been before Eames J. in the first place, it is not surprising that the Court of Appeal held that it could not be relied on to support his findings. The question in the present case, however, is not whether the United States can rely at trial on the passages cited by Eames J. – that is a matter for the District Court to determine in accordance with its own rules of evidence – but whether BATCo can continue to claim privilege (assuming the requirements for doing so are otherwise satisfied) in respect of communications other than those evidenced in those passages. In my judgment under English law it can. There has been no voluntary waiver of privilege; all that has happened is that certain parts of the document have wrongly entered the public domain and have thereby ceased to be confidential. It does not follow that privilege has been lost in other parts of the document or that any other confidential communications can be said to have been affected. I doubt, in fact, that they have, although it is unnecessary to decide that question at this stage. Again, it is better addressed in the context of a specific line of questioning.

Both in the United States and in this country the courts have recognised that a person should not be entitled to invoke legal professional privilege to withhold disclosure of documents or oral communications requesting or containing legal advice if the purpose of obtaining that advice was to further the commission of a crime or to achieve some other iniquitous end. In the United States this is known as the ‘crime-fraud’ exception; in England the principle has most recently been described by reference to iniquitous conduct: see Barclays Bank v Eustice [1995] 1 W.L.R. 1238. The leading case is R v Cox & Railton 14 Q.B.D. 153, a case involving fraud.

A good deal of heat was generated in the present case by the United States’ allegations in the letter of request and elsewhere that the BAT group had engaged in the systematic destruction of sensitive documents at a time when claims by smokers could be foreseen as a possibility, albeit they were not imminent. However, in view of Mr. MacLean’s unequivocal confirmation that the United States did not accuse Mr. Foyle of any personal misconduct or impropriety of any kind and did not seek a finding of impropriety on the part of BATCo either, it is unnecessary to examine the matter in any detail. I do not propose, therefore, to refer to the findings made by Eames J. in the McCabe case about the BAT group’s document retention policy, to the conclusions of the Victoria Court of Appeal reversing his findings, or to the affidavit recently sworn by Mr. Gulson, formerly in-house legal adviser and company secretary of BATAS which deals with the same matters.

However, there is one other aspect of this that I should mention. In the light of Mr. MacLean’s assurances Miss Dohmann invited me make an order that would prevent the United States from revisiting the matter at a later date and thus shut the door on this argument as far as the present application is concerned. I have some sympathy with her suggestion. When pressed for an explanation of his client’s position Mr. MacLean submitted that although he was not asking me to make a finding of iniquity against BATCo or Mr. Foyle, it was relevant to my decision whether to make an order for the examination of Mr. Foyle to have in mind the possibility that evidence might emerge at a later date that would support such a finding and thus deprive BATCo of the right to claim privilege. In other words, I should not refuse the order on the grounds of privilege now since by the time Mr. Foyle came to give evidence the position might have changed.

Although one cannot rule out that possibility altogether, I do not think that it is a proper factor to take into account on this application given that the United States has made it quite clear that on the evidence before me it does not seek any finding of impropriety on the part of Mr. Foyle or BATCo. Nonetheless, I do not think that it would be right to make an order of the kind suggested by Miss Dohmann. Having adopted the stance described above, the United States will be unable to raise this issue on any examination of Mr. Foyle in the absence of some cogent new evidence. There is no reason to think that any such evidence is likely to come to light, but if it were to do so I see no reason why the United States should not be free to deploy it as it sees fit, subject to any objection that might be raised by BATCo at the time.

Finally I must mention the decision of Bell J. refusing to discharge the order made by James J. for the examination of Mr. Cannar on which Mr. MacLean naturally placed some reliance. He submitted that the issues that arose on that application were essentially the same as those which arise on the application before me and that I should be guided by her decision to reaching the same conclusion. I have, of course, found Bell J.’s judgment interesting and informative, but in my view there are some significant differences between that case and the present. In the first place, Mr. Cannar’s position as head of BATCo’s legal department differs from that of Mr. Foyle as a solicitor in independent practice. Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example in a company’s legal department, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature. To that extent it is less easy to maintain that all communications passing between them and the company’s management attract privilege. A blanket claim for privilege was not made in relation to Mr. Cannar’s evidence, but it would have been even more difficult to sustain for that reason. More significant, perhaps, is the fact that in New South Wales privilege is now governed by the Evidence Act 1995 which, as Bell J. herself recognised, differs from the common law in some respects. In these circumstances I do not find that I am able to derive as much assistance from that decision as Mr. MacLean submitted.

Mr. Hapgood submitted that an examination covering the range of matters described in the letter of request would place an excessive burden on Mr. Foyle. Moreover, he submitted that, because the United States had failed to provide either a list of questions which it wished to ask Mr. Foyle or a list of the documents on which it wishes to question him, he would be unable to prepare for any examination in a way that would enable him to answer questions with confidence. He also submitted that it is not really practicable to carry out an examination in this case because Mr. Foyle acquired an extensive knowledge of BATCo’s affairs over a long period of time and cannot be expected to separate in his mind information derived from communications that are privileged from information derived from communications that are not.

I think it likely that an examination of Mr. Foyle would give rise to questions of some difficulty, but for the reasons I have already given I am not persuaded that it would be right to refuse the application on those grounds. It may become apparent as the examination progresses that the exercise is largely a waste of time, but I do not think that the likelihood of that occurring is sufficient to justify refusing to make the order. I can see that it would be embarrassing for Mr. Foyle to be left to grapple with the question of privilege without assistance, but that is not what is envisaged since all parties accept that BATCo should be permitted to attend any examination to raise objections on its own behalf as and when it considers it appropriate to do so.

Although the court will wish to provide all such assistance as it legitimately can in response to a request from a foreign court, it has a duty to ensure that the request does not become an instrument of oppression. However, I am not persuaded that the scope of the matters on which Mr. Foyle’s evidence is sought is so wide as to render an examination oppressive in itself. Although the request identifies 53 separate areas for questioning, in reality many of them are little more than different aspects of the same subject. Provided Mr. Foyle is given an adequate opportunity to prepare himself, I do not think that an examination would be oppressive simply in terms of its extent. Concerns over Mr. Foyle’s personal exposure to prosecution or litigation arising out of matters that come to light during an examination have now been dispelled by the granting of immunity from prosecution and by the offer of an undertaking on the part of the United States not to pursue civil proceedings against him or Lovells.

In those circumstances I think that any remaining risk of oppression can be adequately countered by giving appropriate directions for the conduct of the examination. These might well include, for example, directions requiring the United States to identify more specifically the questions that it wishes to ask Mr. Foyle and to provide him with copies of all the documents which will be put to him in the course of the examination a reasonable time in advance. In the ordinary way the court would appoint a practising lawyer to conduct the examination, but the particular nature of the matters on which Mr. Foyle’s evidence is sought, his position as the BAT group’s former solicitor, the danger of questions touching upon privileged communications and the likely need to obtain rulings of an authoritative nature in the course of the examination all combine to make this an exceptional case. I think that it would therefore be appropriate to direct that the examination be conducted by English counsel before a judge of this court.

The letter requesting the examination of Mr. Broughton seeks his evidence in two broad areas: the relationship of BAT plc to BATCo and Brown & Williamson respectively, and corporate reorganisations within the BAT group. Mr. Onions Q.C. on behalf of Mr. Broughton accepted that his client knows about these two matters generally and could, if necessary, give evidence about them. He submitted, however, that an order should not be made for his examination because the real object of the United States is to carry out what Sir Richard Scott V.-C. in First American Corp. v Zayed [1999] 1 W.L.R. 1154 described as “an impermissible investigatory exercise”. He also submitted that the subjects on which the United States wishes to take Mr. Broughton’s evidence are so vaguely defined that it would be unfair to require him to be examined on them.

Mr. MacLean submitted that if Mr. Broughton could give any relevant and admissible evidence for use at the trial (as he submitted he plainly could), the right course was to make an order for his examination and leave it to Mr. Broughton to indicate the limits of his knowledge and to the examiner to control the proceedings to prevent them being conducted in an improper way. In support of that he drew my attention to an observation made by Lord Fraser of Tullybelton in In re Asbestos Insurance Coverage Cases [1985] 1 W.L.R. 331 at page 339 to the effect that if the witness is asked for evidence which he is unable to give, he can simply say so.

I can see the attraction of that course, but in my view it is not one that is supported by the authorities. It is well established that the court’s jurisdiction to order the examination of a witness under the 1975 Act and the rules of court is limited to taking evidence for use as such in foreign proceedings and does not extend to the examination of the witness for the purposes of oral discovery. This has given rise to difficulty in a number of cases. In Rio Tinto Zinc Corpn v Westinghouse Electric Corpn [1978] A.C. 547 Lord Wilberforce referred at page 610 to the distinction drawn by Devlin J. in Radio Corporation of America v Rauland Corporation [1956] 1 Q.B. 618 between “a process by way of discovery and testimony for that purpose” and “testimony for the trial itself”, making the point that

“which it is in fact is not to be determined by the drafting of Westinghouse’s lawyers but objectively by the nature of the testimony sought. The fact that any evidence obtained is intended to be put in at the trial is quite consistent with the inquiry extending (impermissibly) to trains of inquiry which might produce such evidence.”

Although he accepted that a “blue pencil” approach was permissible in order to confine the request within proper limits, Lord Wilberforce recognised (at page 611) that the point might come at which the whole request should be rejected.

In In re State of Norway’s Application [1987] Q.B. 433 the Court of Appeal by a majority set aside an order for the examination of witnesses on the grounds that the scope of the request was so wide that it amounted to a roving enquiry of an impermissible kind. The problem surfaced again in State of Minnesota v Philip Morris [1998] I.L.P.R. 170 in connection with a letter of request issued by the court in the Minnesota action to which I referred earlier. In that case Owen J. held at first instance that although the terms of the request were too broad in themselves, the court could give effect to it by imposing restrictions on the scope of questioning in the order for examination. That was a legitimate approach in principle, as can be seen from paragraph 18 of the judgment of Lord Woolf M.R., but there are limits to what the court can do in that respect. Moreover, as Lord Woolf pointed out in the same paragraph, it is necessary to hold a balance between the requesting court and the witness who is entitled to know within reasonable limits the matters about which he is to be examined. In that case the court refused to order the examination of the witnesses despite the fact that it was accepted that they could give relevant evidence. The terms of the letter of request were far too vague and it was not the court’s function to re-draft it. Where the letter is not too vague, but the court is satisfied that the evidence sought is required both for trial purposes and for the purposes of discovery, it has jurisdiction to order an examination limited to obtaining evidence for use at trial: see Golden Eagle Refinery Co Ltd v Associated International Insurance Co. (unreported) (Court of Appeal, 19^th February 1998).

The problem of “fishing” as applied to oral evidence was considered in First American Corpn v Zayed [1999] 1 W.L.R. 1154. Sir Richard Scott V.-C. expressed the view at page 1163 that if there were good reason to believe that the intended witness had knowledge of the matters in issue at the trial so as to be likely to be able to give relevant evidence an application to have him orally examined could not be described as “fishing”. It is important to note, however, that that comment was made in the context of a discussion of the court’s jurisdiction. At page 1164 he made it clear that he regarded In re State of Norway’s Application

“as authority for the proposition that, as a matter of discretion, a request for oral testimony should not be acceded to if the intention were to obtain information rather than to obtain evidence for use at the trial.” (my emphasis).

At page 1165 he summarised the position in these terms:

“In my opinion, therefore, an English court must look at the issue of the relevance of the requested testimony, if it is raised, in broad terms, leaving to the foreign court, in all but the clearest cases, the decision as to whether particular answers, or answers on particular topics, would constitute relevant admissible evidence.

In summary, in considering the letters of request in this case the court should, in my opinion, ask first whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the amended schedule of requested testimony, and second whether the intention underlying the formulation of those topics is an intention to obtain evidence for use at the trial or is some other investigatory, and therefore impermissible intention”

And returning to the question at page 1166 he said

“The problem I have . . . . . . is that "fishing" is not a term of art so far as oral testimony is concerned. In relation to oral testimony I do not think an objection of "fishing" has substance except in a case in which the conclusion can be reached, whether from the terms of the request or from other sources, that the intention underlying the request is not one of obtaining evidence for use at trial. The width of a request may indicate the absence of that intention. But, equally, the width of a request may be an inevitable consequence of the complexities of the issues and of the witness's involvement in them.

In the present case each of the letters of request contains an express statement as to the purpose for which the examination of the witness is sought. For example, the request for the examination of Mr. Cowan states, under the heading "Purpose of the evidence or judicial act sought," that "Sworn testimony of Mr. Cowan pursuant to a letter of request is admissible evidence and will be offered at trial."

Such a statement does not, I would accept, conclude the issue of intention. If other material justifies the inference that the intention is mainly of an investigatory character, I think the request would have to be refused. (My emphasis)

These authorities support the conclusion that the court should not make an order for the examination of a witness if it is satisfied that the letter of request is mainly of an investigatory character, even though it is satisfied that the witness may be able to give some relevant and admissible evidence, unless it is possible to exclude certain areas of the request without undue difficulty. It cannot leave the matter to the examiner because, as Lord Woolf pointed out in the Minnesota case, once the court makes an order for the examination of a witness it ceases to have any control of the examination. Moreover, the examiner will not be well-placed to determine where the line should be drawn. Lord Fraser’s observation in In re Asbestos was directed to quite a different question, namely, whether the court should enquire for itself whether the witness can give relevant and admissible evidence. I do not understand his Lordship to have been casting any doubt on the court’s duty to ensure that the request is a proper one to accede to on other grounds.

In the Westinghouse case and in subsequent cases the courts have emphasised that the relevance and admissibility at trial of the evidence which it is sought to obtain by means of the letter of request is essentially a matter for the requesting court and Mr. Onions did not seek to persuade me that none of the evidence Mr. Broughton could give would satisfy that requirement. However, he pointed out that the letter of request does not contain any statement that Mr. Broughton’s evidence is required for use at trial and submitted that the very broad description of the matter on which his evidence is sought provides ample evidence that the United States is really seeking to carry out a wide-ranging investigation of an impermissible kind. He also submitted that even if that were not so, it would be oppressive to subject Mr. Broughton to such a potentially wide-ranging examination.

The matters on which the United States seeks to examine Mr. Broughton fall under two heads: “Relationship of BAT [plc] to BATCo and Brown & Williamson” and “Corporate reorganizations.” The sub-headings are equally broadly framed. Under the first heading they include, for example, “Financial relationship between BAT and BATCo” (paragraph 1.c), “Control of BAT [plc] over BATCo” (paragraph 1.e) and “Control of BAT [plc] over Brown & Williamson” (paragraph 1.f), in each case without any limitation as to time. In the case of the later two sub-headings Mr. Broughton’s evidence is sought on the following subjects: control over research and development, the companies’ position on smoking and health, marketing decisions, board selection, and brand development. Under the second heading Mr. Broughton’s evidence is sought on the “Effect of changes in corporate relationships of BAT [plc] entities” including their “litigation position”, “stock price and “financials”, again without limitation of any kind.

In my view the extremely broad terms of this letter of request bear out both Mr. Onions’ submissions. The United States alleges that the tobacco companies have been involved in a conspiracy which has continued over the past 50 years. It is impossible, therefore, to read down the letter of request by reference to the issues in the litigation so as to treat it as limited to any particular period of time. The fact that BAT plc was not incorporated until July 1997 might provide a basis for reading some limitation into it, but the description given by Ms Eubanks in her third witness statement of the issues to which Mr. Broughton’s evidence is likely to be relevant suggests strongly that the United States wishes to question him about the relationship between Brown & Williamson and other companies in the group over a much longer period. Certainly many of the proposed subjects of the examination are described in such broad terms that almost any line of questioning could be justified and it would be impossible for Mr. Broughton to prepare for the examination in any useful way. This only goes to reinforce the conclusion that the letter of request is designed more to enable the United States to conduct a broad investigation into the relationships between the companies in the BAT group than to obtain Mr. Broughton’s evidence on specific topics for use at the trial.

As in the Minnesota case, I have considered whether the request can be redrafted in such a way as would restrict its ambit to what is permissible and fair. Mr. MacLean sought to assist that approach by agreeing to give up any claim to question Mr. Broughton on BAT plc’s stock price or “financials” and offering to confine questioning on other matters to the period from 1994 onwards, but the extreme width of the remaining subject matter headings remains a difficulty. Faced with a request couched in such broad terms I do not think it is possible for the court to attempt to redraft it. Nor do I think it appropriate in the light of the authorities for it do so.

For these reasons I have come to the conclusion that it would not be right to make an order for the examination of Mr. Broughton.