Can defendants assert litigation privilege over documents created for proceedings they controlled, but were not party to? Richard Highley & Annabel Walker report
- Non-party controlling litigation found to have no right to assert litigation privilege.
- Privilege over documents in the hands of non-parties reviewed.
In Minera Las Bambas SA and another v Glencore Queensland Limited and another [2018] EWHC 735 (Comm) the High Court considered whether defendants were entitled to assert litigation privilege over documents in their possession in circumstances where the documents in question were created for use in proceedings to which the defendants were not a party, but which they controlled on behalf of another, namely the claimants. The court held the defendants, as non-parties to the litigation, had no right to assert privilege.
Summary facts
Under a share purchase agreement (SPA), the defendants assumed partial control of litigation commenced by the claimants in Peru against the Peruvian tax authorities (‘the Peruvian proceedings’). In the Peruvian proceedings, the defendants therefore acted in the name of the claimants.
During standard disclosure in the subsequent English proceedings (which concerned the scope of the defendants’
