The UK’s Office of Fair Trading (OFT) sought disclosure of notes of an internal investigation conducted by Tesco Stores, a major supermarket chain, in response to allegations that it had engaged in ‘concerted practices’ with suppliers of cheese, in order to hike prices. Tesco’s external counsel submitted new witness evidence (which was favourable to Tesco) after the deadline for responding to the OFT allegations but before the OFT had made a finding of infringement of competition law. The OFT refused to admit the new evidence and demanded to see Tesco’s notes of its interviews with potential witnesses. Tesco claimed litigation privilege over the records.  

Lord Carlisle of Berriew, chairman of the Competition Appeal Tribunal, concluded that disclosure of the records was not necessary or proportionate, but went on to consider the (more interesting) question whether they were privileged: Tesco Stores Ltd v Office of Fair Trading, [2012] CAT 6. He noted that while it has been said that litigation privilege cannot be claimed where an internal document is prepared for use in non-adversarial or investigative proceedings, it isn’t always clear (as in this case) whether the proceedings are adversarial or merely inquisitorial, or a bit of both. The OFT naturally contended that its process was simply investigative: no privilege, then. Lord Carlisle disagreed, on the grounds the proceedings were ‘confrontational’ and raised a serious prospect that Tesco would face penalties if found liable for infringement. This was ‘not simply an investigation to get to the bottom of the facts’; it was as adversarial as civil litigation involving the same alleged infringements. Litigation privilege applied to the documents (and had not been waived by Tesco).

Compare In the matter of an application by Canadian Distributed Antenna Systems Coalition (OEB, 22 February 2012), reported in the BLG Monthly Update for April 2012.