Refinitiv UK Holdings Limited & Anor. v The Commissioners for HMRC
[2023] UKFTT 222 (TC)
Município de Mariana & Ors v BHP Group (UK) Ltd & Anor (Ruling on interview notes)
18 April 2024
[2024] EWHC 953 (TCC)
High Court
A company investigated a dam collapse, anticipating lawsuits. They claimed the interview notes from that investigation were protected by lawyer-client privilege. The court agreed, saying the main reason for the investigation was to prepare for legal battles, even though the results were later made public.
Key Facts
- •Claimants sought notes of interviews conducted by Cleary Gottlieb Steen & Hamilton for BHP in an investigation following a dam collapse.
- •Defendants (BHP) claimed litigation privilege over the interview notes.
- •The court applied the test for litigation privilege as summarised in *Al-Sadeq v Dechert LLP* [2024] EWCA Civ 28 and *Starbev GP Ltd v Interbrew Central European Holding BV* [2013] EWHC 4038.
- •Claimants argued that BHP's public statements about the investigation indicated litigation wasn't the dominant purpose.
- •Defendants argued the dominant purpose was to prepare for anticipated litigation, supported by witness statements from BHP's chief legal counsel and a Cleary Gottlieb partner.
Legal Principles
Test for Litigation Privilege
*Al-Sadeq v Dechert LLP* [2024] EWCA Civ 28 and *Starbev GP Ltd v Interbrew Central European Holding BV* [2013] EWHC 4038
Burden of proof for litigation privilege rests with the party claiming it.
*Starbev GP Ltd v Interbrew Central European Holding BV* [2013] EWHC 4038
Dominant purpose test: The communication must be for the dominant purpose of enabling legal advice or obtaining evidence for anticipated litigation.
*Starbev GP Ltd v Interbrew Central European Holding BV* [2013] EWHC 4038
Outcomes
The court rejected the claimants' application for disclosure of the interview notes.
The court found that the dominant purpose of the investigation, including the interviews, was to prepare for anticipated litigation. The publication of the investigation's findings did not negate the claim of privilege for the underlying evidence-gathering process.
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