West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors [2008] EWHC 1729 (Comm) (22 July 2008)

West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors [2008] EWHC 1729 (Comm) (22 July 2008)

The court held that litigation privilege applies only if the dominant purpose of the documents' creation was to obtain legal advice or prepare for litigation. The affidavits provided by Total, though open to criticism, were not directly contradicted by other evidence. The court found no sufficient basis to go behind the affidavits or to order cross-examination, as there was no direct contradiction or evidence of bad faith. The regulatory duties under the COMAH Regulations did not, on the evidence, override the privilege claim at this interlocutory stage. The application for specific disclosure and cross-examination was refused.

Citation
[2008] EWHC 1729 (Comm)
Parties
Claimant: West London Pipeline and Storage Ltd; Claimant: United Kingdom Oil Pipelines Ltd; Defendant: Total UK Ltd; Defendant: Total Downstream Oil Storage Ltd; Defendant: Hertfordshire Oil Storage Ltd; Third Party/applicant: TAV Engineering Ltd; Fourth Party: Motherwell Control Systems 2003 Ltd
Jurisdiction
England and Wales
Judgment Date
22 July 2008
Procedural Posture
Commercial Court Application for Specific Disclosure / Interlocutory Application for Specific Disclosure and Cross Examination on Affidavits
Outcome
Application refused
Legal Topics
Litigation Privilege, Disclosure of Documents, Dominant Purpose Test, COMAH Regulations, Cross Examination on Affidavit
Civil Procedure Commercial Law Litigation Privilege Disclosure of Documents Dominant Purpose Test COMAH Regulations Cross Examination on Affidavit

Case Brief

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Parties

West London Pipeline and Storage Ltd

Claimant

United Kingdom Oil Pipelines Ltd

Claimant

Total UK Ltd

Defendant

Total Downstream Oil Storage Ltd

Defendant

Hertfordshire Oil Storage Ltd

Defendant

TAV Engineering Ltd

Third Party/applicant

Motherwell Control Systems 2003 Ltd

Fourth Party

Procedural Posture

Commercial Court Application for Specific Disclosure / Interlocutory Application for Specific Disclosure and Cross Examination on Affidavits

Legal Issues

  1. 1 Whether the court can go behind an affidavit claiming litigation privilege and in what circumstances
  2. 2 Whether the documents sought are protected by litigation privilege
  3. 3 Whether regulatory duties under the COMAH Regulations override privilege

Ratio Decidendi

The court held that litigation privilege applies only if the dominant purpose of the documents' creation was to obtain legal advice or prepare for litigation. The affidavits provided by Total, though open to criticism, were not directly contradicted by other evidence. The court found no sufficient basis to go behind the affidavits or to order cross-examination, as there was no direct contradiction or evidence of bad faith. The regulatory duties under the COMAH Regulations did not, on the evidence, override the privilege claim at this interlocutory stage. The application for specific disclosure and cross-examination was refused.

Court Disposition

Application refused

Orders

  • Application for specific disclosure against Total and HOSL refused
  • Application for cross-examination of Mr Malcolm Jones and Mr Richard Jones refused