Jamie Maples considers the power of the court to “go behind” affidavits in support of privilege claims
In a recent decision in proceedings arising from the explosion and fi re at the Buncefield oil terminal in December 2005, West London Pipeline & Storage Ltd v Total UK Ltd and others [2008] EWHC 1729 (Comm), [2008] All ER (D) 294 (Jul), Mr Justice Beatson has given guidance on the making of claims to litigation privilege and on the jurisdiction of the court to “go behind” affidavits in support of such claims. The decision is also relevant to the drafting of internal policies concerning the conduct of investigations by companies, in the wake of major incidents like the Buncefield explosion, and to the status of documents produced in the course of such investigations in any subsequent legal proceedings.
Specific disclosure
The judgment concerned an application by TAV Engineering Ltd (TAV), a third party to the proceedings, for specific disclosure of certain documents in the possession of two of the defendants, Total UK Ltd and Total Downstream Oil Storage Ltd (together, Total), produced by Total in the
