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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Minera Las Bambas SA & Anor v Glencore Queensland Ltd & Ors [2018] EWHC 286 (Comm) (21 February 2018) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2018/286.html Cite as: [2018] EWHC 286 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISIONCOMMERCIAL
COURT
Rolls Building, 7 Rolls Buildings Fetter Lane, London EC4A 1NL |
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B e f o r e :
____________________
(1) MINERA LAS BAMBAS SA (2) MMG SWISS FINANCE AG |
Claimants |
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- and - |
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(1) GLENCORE QUEENSLAND LIMITED (2) GLENCORE SOUTH AMERICA LIMITED (3) GLENCORE INTERNATIONAL AG |
Defendants |
____________________
Conall Patton (instructed by Linklaters LLP) for the Defendants
Hearing date: 9 February 2018
____________________
Crown Copyright ©
Mrs Justice Moulder:
Introduction
Background
Disclosure in the English Proceedings
"…there were 4,408 disclosable documents resulting from this review, of which 1,393 attracted legal professional privilege".
"…2. Documents (or parts of documents) passing directly or indirectly between the Defendants and their internal or external legal advisers and other third parties (including, but not limited to, notes, memoranda, emails or other electronic documents evidencing telephone or other conversations and meetings between them, written advice and drafts of legal documents prepared for the purposes of giving legal advice or obtaining evidence), all of which are confidential and have been prepared in contemplation of litigation."
Submissions
i. The 25 documents have not been disclosed, therefore the Claimants have erred in making an application for inspection; they ought to have made an application for specific disclosure under CPR 31.12.
ii. Even if the 25 documents have been disclosed, they do not in fact meet the test for standard disclosure. Therefore, inspection should be refused under the Court's inherent jurisdiction. The Defendants rely on the decisions in Ward Hadaway v DB (UK) Bank [2013]EWHC
4538 (Ch) at paragraphs 36 to 40 and National Crime Agency v Abacha [2016] EWCA Civ 760 at paragraphs 30 to 32.
iii. In any event, inspection should be refused because the 25 documents were produced for the dominant purpose of the Peruvian Proceedings and are, therefore, covered by litigation privilege.
iv. Even if the Court is not satisfied that the Defendants are entitled to assert privilege over the 25 documents, the Court should refuse the application for inspection under its inherent jurisdiction on account of the timing of the Claimants' application. The Defendants say that this application should, at the very latest, have been made at the same time as the Defendants' application for specific disclosure. The Defendants rely on the decision in National Crime Agency v Abacha [2016] EWCA Civ 760 at paragraph 28.
i. Any right to assert litigation privilege over documents generated for the dominant purpose of the Peruvian Proceedings belongs to the First Claimant and therefore it is not open to the Defendants to assert that privilege against the First Claimant.
ii. Even if the Defendants can establish their own independent right to assert privilege over the 25 documents, the First Claimant is entitled to demand inspection of those documents on the basis of the parties' joint orcommon
interest. The Claimants rely on CIA Barca de Panama v George Wimpey & Co [1980] 1 Lloyd's Rep 598 for this proposition.
i. The decision of the Court of Appeal in Guinness Peat Properties Ltd and another v Fitzroy Robinson Partnership [1987] 1 WLR 1027 is authority for the proposition that in a case in which a person is "in all but name the effective defendant to the proceedings" the privilege will belong to that person. The Defendants also rely on a passage from Hollander on Documentary Evidence (12th Edition, 2015) at 18-04 in support of that proposition.
ii. If the Court is satisfied that the Defendants can establish their own independent right to assert privilege over the 25 documents, the Claimants cannot demand inspection of those documents on the basis of the parties' joint orcommon
interest because all 25 of the documents were generated after 26 February 2016 and, by that stage, the parties were already in dispute.
Issues
i. Have the 25 documents been disclosed?
ii. Are the Defendants entitled to refuse inspection of the 25 documents on the basis of litigation privilege arising from the Peruvian Proceedings?
a. To whom does the litigation privilege arising out of the Peruvian Proceedings belong?
b. Does joint interest privilege orcommon
interest privilege assist the Claimants?
iii. Under the Court's inherent jurisdiction, should the application be refused in any event on account of either of the following:
a. The documents do not meet the test of standard disclosure;
b. The timing of the application.
Issue I: Have the 25 documents been disclosed?
I am therefore of the view that the privileged documents comprising the 1393 have been disclosed and the question is therefore whether the claim to privilege can be maintained.
Issue II: Litigation privilege arising from the Peruvian Proceedings
Whose privilege is it?
"whose privilege is it: in Guinness Peat the privilege was held to be the privilege of insurers not the insured."
and to the decision of the Court of Appeal in Guinness Peat Properties Ltd. and another v Fitzroy Robinson Partnership ("Guinness Peat") [1987] 1 WLR 1027. It was suggested to me that this decision is binding on me and that, therefore, the Defendants are entitled to assert litigation privilege.
"I accept that the dominant purpose of the [notification] must be viewed objectively on the evidence, particularly by reference to the intentions of the insurers who procured its genesis. Subject to what is said below, I accept that, so viewed, the dominant purpose was to produce a letter of notification which would be used in order to obtain legal advice or to conduct or aid in the conduct of litigation which was at the time of its production in reasonable prospect "
Joint and common
interest privilege
Issue III: Refusal under the Court's inherent jurisdiction
Not relevant
Timing
Judgment accordingly
Addendum
After sending the draft judgment out to counsel in the usual way, queries were raised in relation to paragraphs 22 and 38 of the draft judgment. Paragraph 38 was referring back to the earlier finding at paragraph 22 and I have clarified the language accordingly. In relation to paragraph 22, the reference to "the Peruvian Proceedings" is a reference to the Defendants' submission in relation to the Claimants' draft order.