Município de Mariana & Ors v BHP Group (UK) Ltd & Anor (Ruling on interview notes)
[2024] EWHC 953 (TCC)
NMC Health PLC (in Administration) v Ernst & Young LLP
11 November 2024
[2024] EWHC 2905 (Comm)
High Court
A company sued its auditors for negligence. A fight started over documents the administrators made after the company went bankrupt. The judge said most of those documents weren't important for the case, but the interview notes and witness statements were protected because they were made to help with the lawsuit.
Key Facts
- •NMC Health PLC (in administration) sued Ernst & Young LLP for negligence.
- •Dispute arose over disclosure of "investigative documents" generated by NMC's administrators.
- •Documents categorized into: supporting evidence of fraud, reports on related party involvement, and summary reports.
- •Interviews and witness statements were separately considered; relevance not disputed for these.
- •The court considered whether the defendant could revisit the issue after a previous hearing before Bright J.
- •The court addressed relevance and privilege of the documents.
Legal Principles
Henderson v Henderson principle prevents re-litigating already determined issues.
Henderson v Henderson
Litigation privilege applies if a document's dominant purpose is to obtain legal advice or conduct litigation.
Waugh v British Railways Board [1980] AC 521, Starbev v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm)
For litigation privilege, proceedings must be reasonably contemplated, and the document created with the dominant purpose of such litigation.
Starbev v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm)
Affidavits claiming privilege should be specific enough to show the deponent's analysis of documents or purpose for creation (for litigation privilege).
West London Pipeline and Storage Limited v Total UK Ltd. [2008] EWHC 1729 (Comm)
In a negligence claim against an auditor stemming from an alleged fraud, post-event investigative documents by liquidators/administrators are often irrelevant unless directly addressing contemporaneous evidence.
China Forestry Holdings Co Limited (In Official Liquidation) and Others v KPMG [2020] HKCFI 2614
In liquidation/administration, the dominant purpose for creating documents may be to obtain legal advice for anticipated litigation, satisfying litigation privilege.
Akai Holdings Limited In Compulsory Liquidation v Ernst & Young
Outcomes
The investigative documents (excluding interviews and witness statements) were deemed irrelevant and not subject to disclosure.
The court distinguished between contemporaneous documents and post-event investigative documents, finding the latter irrelevant for the trial, drawing parallels with China Forestry case. The required exercise to determine relevance would be too substantial.
Litigation privilege was upheld for the 140 interview transcripts and five witness statements.
The court found the dominant purpose for creating these documents was litigation, despite initial correspondence suggesting otherwise. The court emphasized the practicality of the situation and the lack of any other plausible dominant purpose.
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