West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors

The affidavits provided by Total UK Ltd were incomplete and unsatisfactory on material points necessary to establish the claim for litigation privilege over the documents sought. The court found that the burden of proof had not been met and ordered a further affidavit to address the deficiencies. The court declined to order cross-examination, holding that such a measure is only appropriate in extreme cases and that the established authorities generally preclude cross-examination on affidavits of documents at the interlocutory stage. The application of regulatory obligations under the COMAH Regulations could not be determined at this stage as the operator status was a substantive trial issue.

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 (specific Disclosure) / Interlocutory Application for Specific Disclosure and Cross Examination on Affidavit
Outcome
Application for specific disclosure and cross-examination on affidavit refused at this stage; further affidavit ordered.
Legal Topics
Litigation Privilege, Disclosure of Documents, Cross Examination on Affidavit, Dominant Purpose Test, Regulatory Obligations Under COMAH Regulations
Civil Procedure Evidence Commercial Law Litigation Privilege Disclosure of Documents Cross Examination on Affidavit Dominant Purpose Test Regulatory Obligations Under COMAH Regulations

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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 (specific Disclosure) / Interlocutory Application for Specific Disclosure and Cross Examination on Affidavit

Legal Issues

  1. 1 Whether the court can go behind an affidavit claiming litigation privilege and in what circumstances
  2. 2 Whether litigation privilege attaches to documents created following the Buncefield incident
  3. 3 Whether cross-examination on affidavit as to disclosure/privilege is permissible at interlocutory stage

Ratio Decidendi

The affidavits provided by Total UK Ltd were incomplete and unsatisfactory on material points necessary to establish the claim for litigation privilege over the documents sought. The court found that the burden of proof had not been met and ordered a further affidavit to address the deficiencies. The court declined to order cross-examination, holding that such a measure is only appropriate in extreme cases and that the established authorities generally preclude cross-examination on affidavits of documents at the interlocutory stage. The application of regulatory obligations under the COMAH Regulations could not be determined at this stage as the operator status was a substantive trial issue.

Court Disposition

Application for specific disclosure and cross-examination on affidavit refused at this stage; further affidavit ordered.

Orders

  • Mr Malcolm Jones to swear a further affidavit addressing the deficiencies identified in the judgment within a time to be determined.
  • If the further affidavit does not address the gaps, the burden of proof for privilege will not be satisfied and inspection may be ordered.