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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> United States of America v Philip Morris Inc. & Ors  EWHC 3028 (Comm) (10 December 2003)
Cite as:  EWHC 3028 (Comm)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| UNITED STATES OF AMERICA
|- and -
|PHILIP MORRIS INC. and others
|- and -
|BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED
Miss Barbara Dohmann Q.C. and Mr. David Pievsky (instructed by Lovells) for the intervener
Mr. Mark Hapgood Q.C. (instructed by Norton Rose) for Mr. Foyle
Mr. Jeffery Onions Q.C. (instructed by Herbert Smith) for Mr. Broughton
Crown Copyright ©
Mr. Justice Moore-Bick :
"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."
The court's approach to letters of request
"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;"
The application relating to Mr. Foyle
The claim to privilege
"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."
"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.
Legal advice privilege
Waiver of privilege
The Foyle Memorandum
Crime-fraud and iniquitous conduct
The decision of Bell J. in the Cannar application
"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.
"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).
"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"
"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)