In the recent case of Minera Las Bambas SA & anor v Glencore Queensland Limited & ors [2018] EWHC 268 (Comm) the Commercial Court considered an assertion of litigation privilege by Glencore arising out of earlier litigation to which Glencore had not been a party.  The court was not persuaded that it should depart from the established principle that litigation privilege can only arise in favour of a person who is a party to the litigation in relation to which the privilege arises.  Glencore’s claim to privilege accordingly failed.

Background: The proceedings in Peru

The Claimants had purchased all of the shares in Xstrata Peru SA from the Defendants pursuant to a Share Purchase Agreement dated 13 April 2014.  At that time, Xstrata Peru owned the Las Bambas mining project in Peru.  Subsequently, the Peruvian tax authority commenced an investigation into the Las Bambas mining project, which led to an increased tax liability on Minera Las Bambas SA, the First Claimant.  Minera Las Bambas challenged the result of the tax investigation and commenced proceedings in Peru against the Peruvian tax authority.  Pursuant to the terms of the Share Purchase Agreement, the Defendants assumed control of two aspects of the Peruvian proceedings although the proceedings remained in the name of Minera Las Bambas.

The UK proceedings

The proceedings in the UK were brought by the Claimants against the Defendants for the recovery of the additional tax liabilities on Minera Las Bambas that had been the subject of the proceedings in Peru.  Standard disclosure was ordered in the UK proceedings.  The Defendants sought to assert litigation privilege in relation to 25 documents which were prepared for the dominant purpose of the Peruvian proceedings.  The 25 documents had not been individually mentioned in the Defendants’ list but were part of a category of documents in relation to which privilege was claimed.  The Claimants issued an application under CPR 31.19(5) for a determination on as to whether the Defendants were allowed to withhold the 25 documents from inspection. The Claimants argued that any right to assert litigation privilege over documents relating to the Peruvian proceedings belonged to Minera Las Bambas and it was not open to the Defendants to assert that privilege against the Claimants. 

The Commercial Court’s decision

The Judge accepted the Claimants’ submission that it was an established principle that litigation privilege can only arise in favour of a person who is a party to the litigation in question.  The underlying policy is that a party should be free to seek advice for the purposes of litigation to which it is a party without being obliged to disclose the results to the other side.  The Judge considered previous authorities and determined that this principle did not extend to a non-party, even where that person controlled the conduct of the litigation.  She found that any right to assert litigation privilege in respect of documents created in connection with the Peruvian proceedings was that of the Claimants as a party to those proceedings.  It was not, in any event, open to the Defendants to assert such privilege against that party in separate proceedings in England.  The Defendants’ alternative arguments, which included an argument that the documents had not been disclosed because they had not been individually identified in the Defendants’ list and an argument that even if the 25 documents had been disclosed they did not in fact meet the test for standard disclosure and that accordingly inspection ought to be refused, also failed.

Comment

The facts in this case are highly specific, but it is a reminder of an important principle and some useful points of practice in the context of disclosure exercises.  Where documents are obtained from a third party in the early stages of litigation or investigation, those documents will be within the litigating party’s possession or control and thus disclosable.  However, any privilege in the documents which belongs to the non-party cannot be asserted by the party to proceedings who may wish to withhold them from inspection.  Once lists have been exchanged it will be difficult to persuade the Court that a disclosed document can be withheld from inspection on the basis that it does not meet the test for standard disclosure. 

Learning points from this case, then, are to carefully consider the potential impact of documents before requesting possession or control of them, as well as considering any associated issues of privilege at a very early stage.  It may be prudent to review documents whilst they remain in the possession or control of another party rather than requesting them prior to conducting a review.  Care should also be taken when preparing the list of documents only to include documents which are within the scope of your disclosure obligations and to accurately identify those documents over which privilege can properly be claimed.