United States of America v Philip Morris Inc & Ors [2004] EWCA Civ 330 (23 March 2004)

United States of America v Philip Morris Inc & Ors [2004] EWCA Civ 330 (23 March 2004)

Blanket assertion of privilege over all communications between Mr Foyle and BATCo is not justified; privilege must be determined in context of specific questions. Litigation privilege does not apply unless litigation was reasonably in prospect; general apprehension or possibility is insufficient. The order for Mr Foyle's examination stands, subject to procedural safeguards allowing privilege to be asserted as appropriate.

Citation
[2004] EWCA Civ 330
Parties
Claimant/respondent: United States of America; Defendants: Philip Morris Inc & Others; Intervener/first Appellant: British American Tobacco (Investments) Ltd; Second Appellant: Andrew Foyle
Jurisdiction
England and Wales
Judgment Date
23 March 2004
Procedural Posture
Appeal From High Court (commercial Court) / Court of Appeal Judgment
Outcome
Appeal dismissed; order for examination of Mr Foyle upheld.
Legal Topics
Legal Professional Privilege, Litigation Privilege, Letters of Request, Oppression in Evidence Gathering
Civil Procedure Evidence Privilege Legal Professional Privilege Litigation Privilege Letters of Request Oppression in Evidence Gathering

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Parties

United States of America

Claimant/respondent

Philip Morris Inc & Others

Defendants

British American Tobacco (Investments) Ltd

Intervener/first Appellant

Andrew Foyle

Second Appellant

Procedural Posture

Appeal From High Court (commercial Court) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether all communications between Mr Foyle and BATCo are covered by legal advice privilege or litigation privilege
  2. 2 Whether an order for Mr Foyle's examination should be refused on grounds of privilege or oppression
  3. 3 Proper test for litigation privilege in context of anticipated litigation

Ratio Decidendi

Blanket assertion of privilege over all communications between Mr Foyle and BATCo is not justified; privilege must be determined in context of specific questions. Litigation privilege does not apply unless litigation was reasonably in prospect; general apprehension or possibility is insufficient. The order for Mr Foyle's examination stands, subject to procedural safeguards allowing privilege to be asserted as appropriate.

Court Disposition

Appeal dismissed; order for examination of Mr Foyle upheld.

Orders

  • United States to supply paginated bundles and proposed lines of questioning to Mr Foyle and BATCo.
  • Directions hearing to address objections and further directions.