West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

Legal professional privilege is recognised as a fundamental substantive right which prevails over the public interest in all relevant material being available to courts when deciding cases: see R v Derby Magistrates’ Court, ex p. B [1996] AC 487, 507-508; In re L (A Minor) (Police Investigation: Privilege) [1997] AC 16, 32; R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at [7]. The burden of establishing that a communication is privileged lies on the party claiming privilege. This is implicit in Lord Edmund Davies’s words in Waugh’s case, quoted in paragraph [52] below, and is also implicit in the other speeches in Waugh’s case: see also Re Highgrade Traders Ltd. [1984] BCLC 151, at 175d; National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2332 (Comm) at [53]; LFEPA v Halcrow Gilbert & Co Ltd [2004] EWHC 2340 (QB) at [48]; Matthews & Malek on Disclosure (2007) 11-46.

Litigation privilege differs from legal advice privilege, which protects all communications to lawyers. It relates only to communications at the stage when litigation is pending or in contemplation, and only those made for the sole or dominant purpose of obtaining legal advice or conducting that litigation. The modern law on litigation privilege stems from the decision of the House of Lords in Waugh v British Railways Board [1980] AC 521, a decision in which the approach of the High Court of Australia in Grant v. Downs  (1976) 135 C.L.R. 674, and in particular the formulation of Barwick CJ (at 677), was adopted.

In Waugh’s case Lord Edmund Davies stated that he would certainly deny a claim for privilege when litigation was merely one of several purposes of equal or similar importance intended to be served by the material sought to be withheld from disclosure. He stated (at 542) “it is surely right to insist that, before the claim is conceded or upheld, such purposes must be shown to have played a paramount part” and (at 543) that “the public interest is, on balance, best served by rigidly conforming within narrow limits the cases where material relevant to litigation may lawfully be withheld”. Lord Wilberforce said (at 531) that it was clear that the due administration of justice strongly required the disclosure and production of the Board’s report on an accident, and that in order to override this public interest the sole or dominant purpose of the report had to be to prepare for litigation. In Bank Austria Akt. v Price Waterhouse 16 April 1997 Neuberger J said:

“A claim for privilege is an unusual claim in the sense that the legal advisers to the party claiming privilege are, subject to one point, the judges in their own client’s cause. The court must therefore be particularly careful to consider how the claim for privilege is made out.”

Thus, affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, should be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect. On the need for specificity in such affidavits, see for example, Andrew Smith J in Sumitomo Corp v Credit Lyonnais Rouse Ltd [2001] 151 NLJ 272 at [39], referred to without criticism by the Court of Appeal [2002] 1 WLR 479 at [28], although the court did not (see [81]) consider the criticisms of the affidavit in that case were justified.

Notwithstanding these threshold requirements, and the care the court must show, once it is established that a communication was made when litigation was contemplated or pending and for the dominant purpose of obtaining legal advice, the privilege cannot be overriden by another public interest. As Lord Scott stated in Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610 at [25]:

“if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute but it is otherwise absolute.”

The principles applicable to litigation privilege were usefully summarised by Aikens J in Winterthur Swiss Insurance Company v AG (Manchester) Ltd [2006] EWHC 839 (Comm) at [71]:

““Litigation privilege” extends, in time, to information (which must include information stored in electronic form as well as in documentary form) which is produced either during the course of adversarial (as opposed to inquisitorial or investigative) litigation, or when such litigation is in contemplation. The privilege obviously covers legal advice given by a lawyer to his client for the purposes of such existing or contemplated litigation. It also extends to communications between the lawyer and his client and the lawyer and third parties, provided that those communications are made for the sole or dominant purpose of obtaining legal advice or conducting that litigation. ( Grant v Downs [1976] 135 CLR 674, per Barwick CJ (dissenting in the result) at p 677, Waugh v British Railways Board [1980] AC 521, Three Rivers DC v Bank of England (No 6) at paras 100 to 102 per Lord Carswell.) In deciding whether a communication is subject to “litigation privilege”, the court has to consider objectively the purpose of the person or authority that directed the creation of the communication. ( Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1037 per Slade LJ, with whom Woolf LJ and Sir George Waller agreed.)”

Aikens J considered (see [83]) that in considering whether material might be subject to litigation privilege three questions arise. These are:

“First, at the time that the relevant communications were created, was litigation contemplated? Secondly, were the communications created for the dominant purpose of obtaining legal advice for that litigation or in aid of that litigation? Thirdly, under the direction of which person or entity, objectively speaking, were those communications created.”

In the present case, there is an issue as to the second and third of these questions. The issue as to the second question depends on the approach of the court to the affidavits sworn by Mr Malcolm Jones. The issue as to the third question depends on whether what is relevant is the purpose of Mr Jones, the purpose of Total UK and Total Downstream Oil Storage Ltd., or the purpose of the wider Total group. In Guinness Peat Properties v Fitzroy Robinson Partnership [1987] 1 WLR 1027 the defendant architects were required by the terms of their insurance policy to notify their insurers of any potential claim and their administrative partner Mr McLeish did so. He wrote the letter because of that requirement and not to obtain legal assistance. The letter was held to be privileged. Slade LJ stated (at 1036C -1037C):

“In my judgment the proposition that the dominant purpose of a document does not necessarily fall to be ascertained by reference to the intention of its actual composer is borne out by a number of recent authorities. Barwick CJ's formulation of the test [in  Grant v. Downs ] itself refers to the dominant purpose of its author 'or of the person or authority under whose direction, whether particular or general, it has produced or brought into existence'. These words are not to be read as if they had statutory force. Nevertheless, I think that in the present case the insurers are to be regarded as the persons under whose direction the McLeish letter was brought into existence, within the sense and spirit of this formulation.

In Waugh itself, it seems clear that their Lordships were directing their attention not so much to the intentions of the two officers of the British Railways Board who prepared the report there under consideration as to the intentions of the board in directing them to prepare it. In that case the claim for privilege failed only because the purpose of obtaining legal advice in anticipation of litigation was of no more than equal weight with the board's purpose of railway operation and safety.”

Slade LJ stated that, similarly, in McAvan v London Transport Executive [1982] CA Transcript 498 and Re Highgrade Traders Ltd. [1984] BCLC 151 the Court of Appeal reached its decisions by reference to the intentions respectively of the London Transport Executive and the insurance company which procured the reports rather than by reference to the intentions of the writers of the reports.

The Guinness Peat case and Re Highgrade Traders differed from Waugh’s case because in Waugh’s case it was officers within the defendant who prepared the report whereas in the other cases it was an entity other than the party seeking privilege, in Guinness Peat, the architectural partnership, and in Re Highgrade, the loss adjusters. In Re Highgrade Traders the affidavit had been made by a Mr Alexander, the responsible officer in the insurance company dealing with the claims. There was no suggestion that what he stated about the insurance company’s purpose was unauthorised or did not reflect that purpose.

In the present case, Mr Pollock submitted that, in the light of the decision in Re Barings plc [1998] 1 All ER 673, whatever the purpose of Total UK Ltd and Mr Jones, the reports of the Total AIT are not protected by litigation privilege. In Re Barings a firm of solicitors prepared a report for the Department for Trade and Industry at the request of the administrators of a company “in compliance with” the administrators’ statutory duty to report to the DTI pursuant to section 7 of the Company Directors Disqualification Act 1986. The statutory intention in requiring a report to be made is to place the Secretary of State in the possession of facts and opinions necessary to enable him to decide whether to commence disqualification proceedings: see [1998] 1 All ER at 676b. Inspection was resisted on the grounds of privilege and lack of sufficient relevance. The latter ground was rejected.

As to the claim of privilege, Scott VC stated (at 678g-h) that his initial reaction on being told that legal professional privilege was being claimed for a statutory report was one of “some incredulity”. He stated that, despite the weight of authority cited by Miss Gloster QC, that sense of incredulity remained but (at 685j and 686e-f) accepted, in the light of Re Highgrade Traders Ltd and Guinness Peat Properties Ltd v Fitzroy Robinson Partnership, that the dominant purpose test in litigation privilege is a free-standing criterion which, if satisfied, will entitle a document to privilege regardless to whether the production might impinge on the inviolability of lawyer/client communications. But (see 687e-688b) none of the authorities involved a statutory report.

Scott VC stated that in the case of a statutory report the maker has no choice and is obliged by law to make the report; “the only relevant purpose… is a statutory purpose”. He did not accept that the question whether such a report or information for such a report is to be protected by legal professional privilege is to be determined by reference to the purposes of the administrators who make the reports or by their expectations as to the use that will be made of those reports. He considered the question whether such statutory reports are privileged depends on whether there is a public interest requiring protection from disclosure to be afforded to them which overrides the administration of justice reasons that are reflected in the discovery rights given to litigants. He concluded that in the absence of any public immunity claim there was no public interest that required privilege to be afforded to the report. The decision has been cited with approval by the Court of Appeal in Visx v Nidex [1999] FSR 91 and, although Hollander’s Documentary Evidence 14-23-14-24 criticises the use of a balancing exercise in this context the issue of a report produced under a statutory obligation, is not addressed.

It is necessary to distinguish the wider issue of when a court may go behind an affidavit of documents (including one claiming privilege) from the narrower issue of whether, and, if so, when, it may order the deponent of such an affidavit to be cross-examined. I first consider the authorities on the wider issue.

In Frankenstein v Gavin’s House-to-House Cycle Cleaning and Insurance Co. [1897] 2 QB 62, a decision of the Court of Appeal concerned with the 1875 Rules, the defendants’ affidavit objected to producing documents for inspection on the ground that they were part of the evidence supporting its case and did not support or tend to support the plaintiff’s case. It was held that such an affidavit must be accepted as conclusive save in very limited circumstances, and the plaintiff was not entitled to inspect the documents. There was no discussion of cross-examination upon affidavits of documents.

Lord Esher MR referred to the earlier case of Attorney-General v Emerson (1882) 10 QBD 191, in which he had been a member of the Court of Appeal. He stated (at 64) that Attorney-General v Emerson had decided that an affidavit of documents “must be accepted as conclusive, unless the Court can see, that is to say, is reasonably certain, from the statements of the party making it, that he has erroneously represented or has misconceived the character of the document in question”. Chitty LJ (at 65) stated that there are a few exceptions to the rule, and that the exception material to Frankenstein’s case was that stated in Attorney-General v Emerson, which he formulated in the same terms as Lord Esher. AL Smith LJ’s formulation of the exception was not tied to the circumstances in Attorney-General v Emerson and Frankenstein’s case and was broader. He stated (at 64-65):

“it lies upon the plaintiff to get rid of the effect of [the statement in the affidavit] by falsifying it” by which he meant that “he must establish by some means other than by a conflicting affidavit that the defendants’ affidavit is incorrect. … In order that the plaintiff may succeed in doing so, the Court must be satisfied with reasonable certainty either from the defendants’ own statements that they have erroneously represented or misconceived the nature of the documents, as was held to be the case in Attorney-General v Emerson, or from some source other than by affidavit that the defendants’ affidavit is incorrect.”

AL Smith LJ thus appeared to be prepared to go behind an affidavit where it appears from a source other than the defendants’ own statements that the defendants’ affidavit is incorrect, but stated that the source could not be a counter-affidavit.

Neilson v Laugharne [1981] 1 QB 736 is an example of a court going behind an affidavit in determining the dominant purpose of documents for which privilege had been claimed. The court relied on contemporary correspondence and the evidence of the person responsible for instituting the inquiry which led to the creation of the documents in making a claim that the documents were subject to public interest immunity. The case concerned a claim against the Chief Constable of Lancashire for trespass, wrongful imprisonment, false arrest and assault. The Chief Constable’s response to the letter before action was to write to the plaintiff’s solicitors stating he had decided to call for an investigation under section 49 of the Police Act 1964, that the investigating officer would be contacting them and the plaintiff, and that the question of compensation would be considered at the conclusion of the investigation. The defendant claimed that, save for the plaintiff’s own statement, statements taken from the plaintiff and a number of other people were protected on public interest grounds and by litigation privilege. The affidavit in support of the public interest claim was by the deputy chief constable. That in support of the claim of litigation privilege was by a common law clerk who stated that the dominant purpose of the investigating officer’s inquiry was to obtain evidence for the defence to the action. The claim to public interest immunity succeeded but that to litigation privilege did not.

The Court was not prepared to accept the affidavit of the common law clerk in the face of the Chief Constable’s letter to the plaintiff’s solicitor, which was direct and contemporaneous evidence by the person responsible for instituting the inquiry: see Lord Denning MR, and Oliver and O’Connor LJJ, at 745G, 750B-E and 757C. Oliver LJ stated that the Chief Constable’s letter to the plaintiff’s solicitors demonstrated that the dominant purpose of the investigation was the statutory purpose and that had its dominant purpose been to provide material for the threatened legal proceedings it was a very tricky letter indeed because it in effect invited the prospective plaintiff to make a statement to the representative of the prospective defendant under the guise of carrying out a statutory inquiry.

The issue came before the Court of Appeal again in Lask v Gloucester Health Authority, 6 December 1985. The question was whether the Court could go behind affidavits sworn by the defendant’s solicitor and one of its administrators that an accident report prepared on a report form by the defendant was for submission to solicitors in the event of a claim and subject to litigation privilege. O’Connor LJ considered Frankenstein’s case and Attorney-General v Emerson and concluded that it could, and that the claim of privilege was not established.

In Lask’s case the administrator’s affidavit stated the only reason for requiring accident report forms to be completed was to enable them to be given to solicitors in the event of a claim. The solicitor’s affidavit stated that he approved a standard form for use in accident cases in the 1950s, the form in that case was virtually identical to the standard form, and privilege had always been maintained for such forms. His affidavit also referred to and exhibited a 1955 National Health Service Circular which suggested that an appropriate form be used. Paragraph 1 of the circular, which was still in force, stated “from time to time accidents or other untoward occurrences arise at hospitals which may give rise to complaints followed by claims for compensation or legal proceedings, and which may also call for immediate enquiry and action to prevent a repetition”.

The report form itself stated that the report was prepared for the use of solicitors in the event of a complaint or legal proceedings and it was to be submitted to the head of department, who should forward it to the unit administrator for onward transmission to the sector and district administrators. O’Connor LJ stated that the circular differed from the report form because in paragraph 1 the Department stated in terms that the report had a double function; to assist in dealing with claims, and to consider whether action is necessary to prevent a repetition. The rest of the circular, however, was concerned with the importance of getting a report would attract the privilege which it was, before the decision in Waugh’s case, thought a dual purpose report would attract and the solicitor’s affidavit referred to correspondence about the form in 1977 which showed the intention was that the form was to be for solicitors’ use in the event of a claim and thus would attract the privilege.

O’Connor LJ applied the test stated in Frankenstein’s case and Attorney-General v Emerson: were there statements from the party making the affidavit that they had erroneously misconceived or represented the character of the accident report. He concluded that it was plain from the circular that the report was prepared for a dual purpose. He also considered this was plain from the form itself because he saw no legal professional purpose in submitting the form to the head of department and the other administrators before sending it to the person who was to hold it for submission to the solicitor unless there was a second purpose as envisaged in the circular. The county court judge’s decision that the report was a document prepared for a dual purpose was upheld. The question of cross-examination on an affidavit of documents was not discussed in either Lask’s case or Neilson v Laugharne.

In Re Highgrade Traders Ltd. [1984] BCLC 515 the liquidators of a company successfully applied under section 268 of the Companies Act 1948 for an order to examine an officer in an insurance company about reports by loss adjusters, fire experts and accountants prepared for the insurance company in respect of which litigation privilege was claimed. Affidavits were sworn by the insurance company’s solicitors stating that the dominant purpose for which the reports came into existence was in anticipation of litigation and for the purpose of obtaining legal advice. The Court of Appeal accepted a submission by the officer that he could not have anticipated the need for more detailed evidence before the hearing. A further affidavit was sworn and taken into account by the court which, was, however, not convinced that it added anything to what was reasonably deducible from the material before it.

Oliver LJ analysed the evidence before the court and concluded that it established overwhelmingly that the insurers were actuated by the motive of obtaining legal advice in relation to contemplated litigation, which was confirmed by a letter written by the insurers’ solicitors. Oliver LJ (with whom Goff LJ agreed) stated (at 175) that:

“I would not want it to be thought that the mere writing of such a letter by solicitors, whether for insurers or for anyone else, sometimes perhaps as a matter almost of routine drill, is in all cases going to be determinative of the question. At highest, it is no more [than] evidence of a fact which may require to be independently proved.”

See also Simon J in National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2332 (Comm) at [52]. Earlier in his judgment (at 162) Oliver LJ said:

“[I]f there is something in the circumstances of the case which shows that the affidavit evidence is wrong (as there was in Nielson v Laugharne), the court is entitled to go behind the affidavit, but I would not … feel able to subscribe to the view that the court is necessarily bound to accept a bare assertion as to the dominant motive of a deponent, unaccompanied by some explanation of the circumstances, at any rate in a case where more than one motive is possible.”

Where the Court is minded to go behind an affidavit, there are four options open to it. It may conclude, as happened in Neilson v Laugharne and Lask’s case, that the evidence in the affidavit does not establish that which it seeks to establish, i.e. that the person claiming privilege has not discharged the burden that lies on him, and order disclosure or inspection. It may order a further affidavit to deal with matters the earlier affidavit does not cover or on which it is unsatisfactory. This is seen in cases on inadequate affidavits disclosing assets in response to freezing orders, but also in the case of an affidavit as to disclosure or inspection: see Birmingham and Midland Motor Omnibus Co. Ltd. v London and North Western Railway Co. [1913] 3 KB 850. See also National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2332 (Comm) at [53] and [63]; Atos Consulting Ltd. v Avis plc (No 2) [2007] EWHC 323 (TCC) at [36-37], although in those cases the evidence was by witness statement rather than by affidavit: see [2006] EWHC 2332 (Comm) at [34] – [44] and [2007] EWHC 323 (TCC) at [7], [12], [18]. They are also cases on the third option open to the Court, to inspect the documents, which it may do in the circumstances set out in the next two paragraphs. The fourth option is that, subject to the restrictions in paragraphs 79-84 of this judgment, the Court may order cross-examination of the deponent.

Neither TAV not the Total defendants invited me to inspect documents in this case. Neuberger J’s view in Bank Austria Akt v Price Waterhouse that inspection of documents should be a solution of last resort (in part because of the danger of looking at documents out of context) was shared by Simon J in National Westminster Bank plc v Rabobank Nederland see [54-55], and by Ramsay J in Atos Consulting Ltd. v Avis plc (No 2) [2007] EWHC 323 (TCC) at [36-37]. Simon J stated that Rabobank’s evidence about the dominant purpose of the report the court was invited to inspect was difficult to reconcile with both its documents created at the time and some of its other evidence so that, if there is a threshold which has to be crossed before a court can properly be invited to look at documents, that threshold had been crossed and the court had discretion to do so: see [34] and [49-51]. Simon J stated that the court should not inspect the documents unless there is credible evidence that the lawyers have either misunderstood their duty, or are not to be trusted, or there is no reasonably practical alternative. He did not inspect them but ordered Rabobank’s solicitors to make an affidavit verifying the claims to privilege in relation to the documents withheld.

Although inspection is not at issue in this case, what is said in cases on inspection gives guidance as to the general approach of the court where a claim to privilege is challenged. In Atos Consulting Ltd. v Avis plc (No 2) Ramsay J stated (at [37]) that the appropriate course to be adopted where privilege or irrelevance is relied on is for the Court to proceed by way of stages. Ramsay J’s first two stages are to consider whether the evidence produced on the application establishes the right to withhold inspection of a document and there are no sufficient grounds for challenging the correctness of that asserted right. If these conditions are met, the Court should uphold the right. His third stage arises where the Court is not satisfied that the right to withhold inspection is established because, for instance, the evidence does not establish a legal right to withhold inspection. He states that in such a case the Court will order inspection of the documents. His fourth stage arises where sufficient grounds are shown for challenging the correctness of the asserted right. He states that in this situation the Court may order further evidence to be produced on oath or, if there is no other appropriate method of properly deciding whether the right to withhold inspection should be upheld, it may decide to inspect the documents. If it inspects the documents it may invite representations. Neither Ramsay J nor Simon J referred to the possibility of cross-examination, to which I now turn.

CPR 32.7 makes provision for cross-examination at a hearing other than the trial where evidence is given in writing. CPR 31.19(5) provides for a challenge to a claim of privilege made under CPR 31.19(3), which when made, is supported by a statement of truth. Cross-examination on an affidavit at an interlocutory stage has been considered in the context of affidavits disclosing assets sworn in response to the order of the court when making a freezing injunction. In that context, it has been recognised that the circumstances may mean that it is more sensible, if only for reasons of speed and urgency, not to order further affidavits in order to fill the vacuum alleged to exist in the affidavits but to order cross-examination: see House of Spring Gardens Ltd. v Waite [1985] FSR 173 at 183 per Stephenson LJ.

In Yukong Lines v Rendsburg (Court of Appeal 17 October 1996) Phillips LJ stated that the background of applications for freezing orders is often a situation in which it is urgently necessary for the court to intervene in order to assist the claimant to prevent the defendant from frustrating the object of the proceedings. He also stated that the test is whether it is just and convenient to order cross-examination, and that cross-examination is not only available where there is no alternative relief. Even in the context of an affidavit in response to a freezing order, however, he regarded ordering cross-examination as “an exceptional measure”. Motorola Credit Corp. v Uzan (No 2) [2004] 1 WLR 113 is an example of the circumstances in which cross-examination may be ordered. In that case the Court found (see at [141] and [147]) that there had been piecemeal, late, untruthful and manifestly incomplete disclosure by the defendants.

Does the position in relation to affidavits of documents (including those claiming privilege) differ? It was submitted on behalf of the Total defendants and HOSL that no cross-examination of such affidavits is to be ordered. Matthews & Malek on Disclosure (2007) 6-44 states that the weight of authority under the RSC “was to the effect that an opposing party could not cross-examine the deponent on his verifying affidavit at all” because the affidavit did not go to any of the issues in the action, and that the position is the same under the CPR. The authors state that in the context of freezing and search orders the position at an interlocutory stage is different because it may be crucial to establish what has happened to assets prior to trial.

Matthews & Malek rely on the decisions of the Court of Appeal in Birmingham and Midland Motor Omnibus Co. Ltd. v London and North Western Railway Co. [1913] 3 KB 850 and Lonrho plc v Fayed and others (No 3) 14 June 1993, The Times, 24 June 1993. In Birmingham and Midland Motor Omnibus Co. Ltd. v London and North Western Railway Co. the defendants’ affidavit of documents claimed litigation privilege for certain documents. The case was primarily concerned with whether the Court could inspect the documents for the purpose of deciding the validity of the claim of privilege, but also considered the affidavit. The Court of Appeal inspected the documents, as the judge in chambers had, and decided that privilege had properly been claimed. As to the affidavit, Buckley LJ (with whom Vaughan Williams LJ agreed) stated (at 855):

“An affidavit of documents is sworn testimony which stands in a position which is in certain respects unique. The opposite party cannot cross-examine upon it and cannot read a contentious affidavit to contradict it. He is entitled to ask the Court to look at the affidavit and all the documents produced under the affidavit, and from those materials to reach the conclusion that the affidavit does not disclose all that it ought to disclose. In that case he can obtain an order for a further and better affidavit.”

Buckley LJ also stated that, under the rule then applicable to a specific document, the party who is seeking discovery may file an affidavit specifying further documents and calling upon the party making the affidavit of documents to account for them. Hamilton LJ, citing Jones v Montevideo Gas Co. (1880) 5 QBD 556, stated (at 858) that although an affidavit of discovery cannot be challenged by cross-examination, counter-affidavit or administration of interrogatories:

“If from the affidavit itself, or from the documents therein referred to, or from an admission in the pleadings of the party from whom discovery is sought, the Master or judge is of the opinion that the affidavit is insufficient, he ought to make an order for a further affidavit….”

The Birmingham and Midland Motor Omnibus case was considered in Ankin v London and North Eastern Railway Co [1930] 1 KB 527. Scrutton LJ (at 534) stated:

“It has long been settled that a deponent stating grounds on which he claims privilege is not to be met by an opposing affidavit either contradicting him or cross-examining him with a view of showing that what he has stated is untrue. The other party can only look at the affidavit itself. If it is ambiguously or too ingeniously worded, so that its meaning is obscure, he may take the objection that the claim for privilege is not sufficient and may obtain a more precise statement of facts.”

The authorities were reviewed in Lonrho plc v Fayed and others (No 3) 14 June 1993, The Times, 24 June 1993. Lonrho sought discovery of documents relating to very large profits which the Fayed brothers said they had made from an oil trading partnership in the Middle East since 1979 and about their fortune in Egypt prior to 1961. The Fayed brothers made affirmations stating there were no such documents in their possession. On behalf of Lonrho it was argued that it was incredible that if such a partnership existed over many years generating huge profits there were no documents in the Fayeds’ possession. Swinton Thomas J ordered that the Fayed brothers should be cross-examined on their affidavits of documents. In the Fayed brothers’ appeal, it was submitted on behalf of Lonrho that an affidavit of documents made pursuant to an order for specific discovery under RSC Order 24 Rule 7 was not conclusive, and that, if it was conclusive, the Court would be powerless to enforce its orders. Stuart-Smith LJ (with whom Kennedy and McCowan LJJ agreed) stated (at p 19C-D of the transcript) that the authorities led him to the conclusion that:

“… on whatever ground the order for a further affidavit is made, whether because of some admission by the deponent or the belief of the opposite party that other documents exist, the oath of the deponent in answer is conclusive; it cannot be contravened by a further contentious affidavit and cannot be the subject of cross-examination.”

His Lordship stated that dicta in a number of more recent cases and the cases in which cross-examination on affidavits is ordered at an interlocutory stage in aid of Mareva relief did not alter or modify the well-established rule laid down in the authorities for over a century. He said that applications in those cases are for the most part concerned with discrete issues which do not impinge on the issues at trial. He said (see pp 24-26 of the transcript) that in other cases “the reasons for the rule that the statement in the affidavit of documents is conclusive save to the extent that a further affidavit may be ordered are not far to seek”. He referred to the fact that the issue to be canvassed at the interlocutory stage may impinge on, and be crucially relevant to the issues in the trial. To try it at an interlocutory stage could involve injustice, and replace the adversarial process at trial by an inquisitorial inquiry. He also stated that protracted interlocutory applications add to both delay and expense and should be avoided as far as possible. He stated (see p 28 of the transcript) that, if he was wrong in holding that the statement in an affidavit of documents is conclusive so that the court has no power to order cross-examination, “the exercise of that power should … be reserved for those cases where the existence or non-existence of the document raises a discrete issue which does not impinge to any serious extent on the issue in the action”.

Finally, there is LFEPA v Halcrow Gilbert & Co Ltd [2004] EWHC 2340 (QB), a decision of the Technology and Construction Court, in which HH Judge Toulmin QC dealt with a claim to privilege of a report prepared for the London Fire and Emergency Planning Authority sought by the defendants in proceedings about a construction project that had overrun. The Deputy Head of Legal Services of the Authority had made a witness statement and gave evidence that a reference in the statement to the report being part of a “technical audit” meant a legal audit for the purpose of litigation. It appears that she was cross-examined. The judge stated (at [48]) that the burden of proof lies on the party claiming privilege. He rejected the evidence of the Deputy Head of Legal Services and concluded that the dominant purpose of the report was not for the purposes of litigation.

It is possible to distil the following propositions from the authorities on challenges to claims to privilege:-

Mr Pollock submitted that, had the framers of CPR 32.7 wished to preserve the old rule and to exclude a power to cross-examine in disputes concerning privilege, they could have done so. The Rule does not do so and there is no reference in the notes to the White Book to the authorities cited by Matthews and Malek. He submitted that there is provision in CPR 31.19(5) for a challenge to a claim of privilege made under CPR 31.19(3) which is made, supported by a statement of truth. There is no indication that a court considering a challenge to such a claim cannot order the cross-examination of the person claiming privilege. Mr Pollock argued that the CPR is a self contained code to which effect should be given. He relied on Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 at 1934 where Lord Woolf MR stated that, once the CPR applies, “earlier authorities are no longer generally of any relevance”. He also relied on the statement of May LJ in Purdy v Cambran 17 December 1999. May LJ stated that Lord Woolf “was not saying that the underlying thought processes of previous decisions should be completely thrown overboard” but that decisions will depend on the justice in all the circumstances of an individual case and that it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective rather than on authorities under the former rules.

Notwithstanding Mr Pollock’s submissions, I have concluded that, in view of the fact that Rule 32.7 follows the old County Court Rules Order 20 Rule 5 which has the same effect as RSC Order 38 Rule 2(3), the old law cannot be discarded in the way he submitted it should be. Even if there is no longer a jurisdictional bar to ordering cross-examination of the deponent on his affidavit in this context, the exercise of that power should be reserved for extreme cases where there is no alternative relief.

In Nomura International plc v Grenada Group Ltd [2007] EWHC 624 (Comm) Cooke J stated (at [25-26]) that “where the new rule under the CPR follows the same form and appears to have the same underlying intention” as the rule in the RSC, regard should be had to the principles which the court previously applied under the old rule. That statement was made in the context of consideration of whether an abuse of process had taken place. The same approach in substance was taken in the context of disclosure of documents for the purpose of interlocutory proceedings (albeit without reference to the old rules) in Fiona Trust Holding Corp v Privalov [2007] EWHC 39 (Comm) at [25-27].

The procedure under the CPR is, in substance, the same as that under the RSC although now the claim for privilege is made in a disclosure statement instead of an affidavit. The rationale of avoiding mini-trials at an interlocutory stage is still there. Mr Pollock was not able to point to any post CPR authority in support except for LFEPA v Halcrow Gilbert and Co.. Lord Grabiner and Mr Edey submitted inter alia that case was different because the evidence challenged was in a witness statement rather than an affidavit. While there are, no doubt, differences between witness statements supported by a statement of truth and sworn affidavits, it is difficult to see why cross-examination should be permitted where the claim for privilege is made in a witness statement but not where the claim is made in an affidavit. That case, however, proceeded without consideration of any of the authorities to which I have referred and it does not appear from the judgment that there was any argument as to whether cross-examination on the evidence given in support of the claimed privilege was a proper course. In those circumstances it is of limited assistance, save as indicating (see Hollander’s Documentary Evidence 9^th ed., 2-33) that the position in practice may be less dogmatic than the theory.

As to whether there is still a jurisdictional bar to ordering cross-examination of the deponent on his affidavit in this context, the need to avoid the party claiming privilege being judge in his own case and the statements in the cases that an assertion of privilege is not determinative and may require to be independently proved are difficult to reconcile with an absolute bar. In the light of the overall approach in the CPR, in an extreme case where there is no alternative relief, it may be just to order such cross-examination rather than concluding, without such examination, that the evidence before the Court does not establish a legal right to withhold inspection and ordering inspection. This in turn, however, should only be contemplated if it can be done without impinging to any material extent on the issues in the action, and only after the court has considered whether the position can be addressed by ordering further evidence to be produced on oath, or by inspecting the documents. Even at that stage cross-examination is unlikely to be necessary. If the deponent is not able to deal with any gaps and inadequacies in a further affidavit it is likely that the burden of proof that lies on a person claiming privilege will not have been satisfied.

Having summarised the relevant legal principles, I turn to their application in the circumstances of this case.

I first deal with the submissions based on the decision in Re Barings plc. That case is authority for the proposition that where a report is perpared pursuant to a statutory obligation the purposes of the instigator of the report are irrelevant. There should be no difference in principle where the obligation is a regulatory rather than a statutory obligation. However, I reject the submission that the Total defendants’ claim for privilege should be rejected because the Total AIT reports and communications were produced pursuant to Total’s regulatory duties under the COMAH Regulations.

While there may well be an implied duty under the regulations to investigate, there is no duty to report. More fundamentally, it has not been established that Total is the operator of the site for the purpose of the COMAH Regulations. That will be a major issue at the trial. Mr Pollock recognised the difficulty facing the court in dealing with this issue. He submitted that I should decide the matter as a question of principle, or on alternative assumptions. I am not, however, in a position to deal with this issue at this stage, even as a matter of principle. It would risk prejudging the issue at the trial on the basis of very limited, indeed almost no, material. The only material before me concerning this issue was the exchange of correspondence between HOSL and the competent authority which Mr Pollock relied on as showing that HOSL had held itself out to the authority as the operator of the site. Apart from the fact that that was used as an argument in support of the contention that HOSL was the operator under the COMAH Regulations, I was informed that there were similar communications between Total and the competent authority. At the trial, there is bound to be a substantial quantity of evidence on this issue. I have not seen any of that evidence. This issue is a classic example of the dangers to which Stuart-Smith LJ adverted in Lonrho plc v Fayed.

The next issue concerns Mr Malcolm Jones’s affidavits. Are there grounds for going behind them? I have concluded that there are a number of respects in which the first affidavit is guarded and not satisfactory and that those matters are not addressed in the second affidavit. The affidavits do not enable me to conclude that the claim for privilege has been established. They exhibit no documents in support of what Mr Jones says as to the purpose of establishing the Total AIT. The only documents exhibited are Mr Ollerhead’s memoranda which are said by Mr Jones to reflect a misunderstanding, and the postings on Total’s intranet. I set out my reasons for concluding that the first affidavit is not satisfactory and then consider the consequence and the appropriate course of action.

I do not accept Mr Pollock’s submission based on Mr Jones’s statement of what his “objective” was and the references in the affidavit to the “primary purpose” of the AIT. It is clear, on a fair reading of the affidavit as a whole, that Mr Jones’s evidence is that his dominant purpose in setting up the investigation was to prepare for contemplated legal proceedings. Moreover, in referring only to Mr Poynter’s role as Head of Legal and not his HSEQ role the affidavit is guarded, but, in the light of what Mr Ollerhead’s memorandum says about Mr Poynter having to rely on Mr Coull on HSEQ matters, this may reflect the reality.

Mr Jones does not say that he made the decision alone. As Managing Director of Total UK Ltd, he no doubt had considerable authority, but the affidavit does not state what roles, if any, were played by others in the company, in particular members of the Board, on 12 December when the decision to set up the AIT was taken, or what part was played by the French parent company at that time. There is evidence of initial contact with people from the French parent company and Davies Arnold Cooper advised Total’s French lawyers on 12 December. Since what is relevant is the purpose of Total UK and Total Downstream Oil Storage Ltd. at the time the AIT was established on 12 December, these are matters which are relevant and which should have been addressed. Mr Jones states (in paragraph 12) that at that time they were working “mainly through oral communication”, which suggests there were some documents, but he does not refer to any document other than the Ollerhead memoranda which he mistakenly (see below) considered were privileged.

Mr Jones may not have told Mr Ollerhead of his purpose, or Mr Ollerhead may have misunderstood what he was told. There is, however, no explanation of how a misunderstanding by Mr Ollerhead may have come about, or whether it was shared by others within Total. The affidavit does not state whether Mr Jones told Mr Ollerhead or anyone in Total UK or the group what his purpose was and whether that was the corporate purpose. Mr Jones states that Mr Poynter and (after 21 December) DLA Piper reported to him in respect of the AIT’s progress. There is, however, no explanation of why, if the dominant purpose was to prepare for contemplated legal proceedings and Mr Ollerhead’s understanding of the purpose of the investigation was wrong, Mr Poynter, who was copied in to all the emails, did not correct him.

Mr Jones states in paragraphs 13 and 15 of his first affidavit that, but for the contemplation of litigation, the Total AIT would not have been set up. The affidavit states that he had no regard to any internal Total procedure and that the one day and ten day reports required by element 5 of the Safety Management System were not produced. It is not explained whether he was not aware of the mandatory requirements in place under the Application Guide or whether he decided not to use them, or why the required reports were not produced. There is no explanation in either of his affidavits as to why no account was taken of the lesson-learning culture expressed in the Application Guide and other documents and how this fits with, for example, the section on “Lessons from Buncefield” in Total’s Environment and Social Responsibility Report 2006. The legitimacy within the Total corporate structure of the Managing Director having no regard to procedures described as mandatory which have specified “lesson learning” purposes is not explained. There is also no explanation of the difference with the DAC letter which refers to Total’s internal requirements and does not suggest that, but for the legal proceedings contemplated, no AIT would have been set up. The affidavit is thus, at a minimum, incomplete on matters which it is necessary for the court to know in order to determine the claim to privilege.

Paragraph 12 of Mr Jones’s affidavit can only be understood as a claim of privilege in relation to documents concerning the setting up of the AIT. As Lord Grabiner recognised at the hearing, there is no ground for such a claim. Lord Grabiner gave an undertaking that Total would look for and disclose other documents in this class. However, Mr Jones’s affidavit shows a misapprehension as to the extent of any privilege to which Total is entitled which requires elucidation.

Having concluded that the affidavits are not satisfactory, the question is what order should be made. I have said that they do not enable me to conclude that the claim for privilege is established. I have considered whether this means that the Total defendants have not satisfied the burden of proof and that I should order inspection of the documents. The affidavits do not disclose all that they ought to disclose. However, in the light of Mr Jones’s unequivocal statements as to his purpose and the time some of TAV’s evidence was served (Mr Poynter’s email - paragraph 16 above - referring to what Total’s parent company would require was produced during the hearing) this would not be appropriate. I have decided that, having regard to the decisions such as Birmingham and Motor Omnibus Co Ltd v London and Northwest Railway Co, Ankin v L & NE Railway Co, and National Westminster Bank plc v Rabobank Nederland, Mr Jones should be ordered to swear a further affidavit to deal with the matters which the earlier affidavits do not cover or on which they are unsatisfactory. As to cross-examination, for the reasons I have given, on the assumption there is jurisdiction to order cross-examination in this context, I do not consider this is an appropriate case for doing so.

I have referred to the abandonment of the applications in respect of HOSL and Mr Richard Jones, and said that they were unsustainable. The documents had not been requested from HOSL prior to the application. Nor were HOSL’s solicitors contacted on the issue. As in the case of Mr Malcolm Jones, there was no formal application to cross-examine him supported by evidence as required by the CPR. Since TAV’s case was in effect that Mr Jones’ affidavit should not be believed, a serious allegation, it should have been made by application supported by the evidence on which it was proposed to rely. The supporting material on which TAV relied was in fact served only on 4 July, very shortly before the hearing.

There was nothing in the material before the court which cast doubt on the affidavits sworn on behalf of HOSL by Mr Richard Jones and Mr Young. In view of HOSL’s status, the existence of the HSC’s Buncefield Major Incident Investigation Board and Total’s Accident Inspection Team’s investigations, it was unsurprising that HOSL’s dominant purpose in setting up its accident investigation team was to assist HOSL’s legal advisers in advising it in relation to contemplated civil and criminal proceedings. Although a number of other points were relied on in TAV’s written submissions, at the hearing its case that the HOSL investigation was also for lesson-learning purposes rested on HOSL having held itself out to the competent authority as the operator of the site and was therefore under a duty under the COMAH Regulations to investigate incidents and near misses. Mr Young’s affidavit, which is unchallenged, addresses this issue. Moreover, Mr Young was at the relevant board meetings and advised the board. His evidence is that the sole purpose of setting up the HOSL AIT was to assist in relation to contemplated criminal and civil proceedings. His evidence is not challenged. The application to cross-examine Mr Richard Jones thus falls at the first hurdle.

There were other fundamental difficulties in the application. I have dealt with the position as to cross-examination in relation to an affidavit as to disclosure including one claiming privilege, elsewhere in this judgment. In the case of HOSL, cross-examination would have been wholly inappropriate for two reasons. First, in the light of the close involvement of the lawyers in the decision to establish the HOSL AIT, it would be difficult to examine Mr Jones without straying into the legal advice Eversheds gave the HOSL board. Secondly, a major issue in the litigation is whether Total or HOSL were the operators of the site for the purposes of the COMAH regulations. It is established that it is inappropriate to deal with such a matter at an interlocutory stage on the basis of limited evidence. In any event, as I have observed, Mr Young’s affidavit addresses the Regulations point and states that there was no suggestion that the HOSL AIT should be set up for the purposes of the COMAH regulations or pursuant to any internal procedures.

In the light of what is stated in paragraphs 95-101 of this judgment, the appropriate course is to require a further affidavit to be sworn by Mr Malcolm Jones dealing with the matters which his earlier affidavits do not cover or on which they are unsatisfactory. I shall hear submissions as to the time within which this is to be done. If the gaps and inadequacies are not addressed, it is difficult to see that the burden of proof that lies on a person claiming privilege will have been satisfied.