Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm) (18 December 2013)

Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm) (18 December 2013)

ICEH failed to establish that litigation was reasonably anticipated or that the dominant purpose of instructing Barclays or KPMG was for litigation at the relevant times; therefore, the documents are not protected by litigation privilege and must be disclosed.

Citation
[2013] EWHC 4038 (Comm)
Parties
Claimant: Starbev GP Ltd; Defendant: Interbrew Central European Holding BV
Jurisdiction
England and Wales
Judgment Date
18 December 2013
Procedural Posture
Commercial Court Application Under CPR 31.19(5) / Interlocutory Application Regarding Litigation Privilege
Outcome
Application granted; claim for litigation privilege rejected.
Legal Topics
Litigation Privilege, Disclosure of Documents, Dominant Purpose Test, Commercial Contracts, Anti Avoidance Provisions
Civil Procedure Commercial Law Litigation Privilege Disclosure of Documents Dominant Purpose Test Commercial Contracts Anti Avoidance Provisions

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Parties

Starbev GP Ltd

Claimant

Interbrew Central European Holding BV

Defendant

Procedural Posture

Commercial Court Application Under CPR 31.19(5) / Interlocutory Application Regarding Litigation Privilege

Legal Issues

  1. 1 Whether documents relating to advice from Barclays and KPMG are protected by litigation privilege
  2. 2 Whether litigation was reasonably anticipated at the time of instruction
  3. 3 Whether the dominant purpose of instructing Barclays and KPMG was litigation

Ratio Decidendi

ICEH failed to establish that litigation was reasonably anticipated or that the dominant purpose of instructing Barclays or KPMG was for litigation at the relevant times; therefore, the documents are not protected by litigation privilege and must be disclosed.

Court Disposition

Application granted; claim for litigation privilege rejected.

Orders

  • Barclays advice and KPMG report, together with related documents up to the time of production, to be disclosed.
  • Parties to agree on the appropriate date for litigation privilege to apply, failing which a further ruling may be sought.