Município de Mariana & Others vs BHP Group (UK) Ltd

This case concerned an application by the claimants seeking notes of interviews related to a dam collapse, which the defendants claimed were protected by litigation privilege.

TLDR:

• Claimants sought interview notes prepared by Cleary Gottlieb Steen and Hamilton.
• Defendants argued the notes were protected by litigation privilege.
• The court upheld the claim of litigation privilege, denying the claimants' application.

The claimants, Município de Mariana & Others, filed an application on 8 April 2024 seeking notes of interviews of 11 individuals identified in a Panel Report prepared by Cleary Gottlieb Steen and Hamilton. The claimants wanted these notes reviewed by Slaughter and May, with any claims to privilege identified by 3 May 2024.

The defendants, BHP Group (UK) Ltd, resisted the application, asserting that the notes were covered by litigation privilege. The test for litigation privilege was not in dispute, and the defendants referred to the case of Al-Sadeq v Dechert LLP [2024] EWCA Civ 28 for the relevant legal requirements.

The claimants argued that BHP had publicly stated that an enquiry would be conducted and findings published openly, suggesting that litigation was not the dominant purpose of the investigation. They sought an order for the documents to be reviewed by Slaughter and May to ascertain any claims for privilege.

The defendants contended that the interview notes were indeed covered by litigation privilege. Ms. Cox, BHP's chief legal counsel, and Ms. Park, a partner at Cleary Gottlieb, provided witness statements supporting this claim. They explained that the investigation was conducted to prepare for anticipated legal proceedings following the dam collapse.

Ms. Cox stated that BHP appointed Cleary Gottlieb to carry out the investigation to obtain information, advice, and prepare defences and strategies for anticipated litigation. Ms. Park detailed her firm's role in the investigation, including gathering and analysing documents, conducting witness interviews, and advising on legal matters.

The court found that the dominant purpose of the investigation was indeed litigation, and thus the notes were protected by litigation privilege. The court distinguished between the outcome of the investigation, which was published, and the investigation process itself, which was confidential.

Therefore, the court ruled that it would not be appropriate to order the disclosure of the witness summaries or notes, nor a further review by Slaughter and May.

Legal representatives: Alain Choo Choy KC, Andrew Fulton KC, Jonathan McDonagh, Pippa Manby, Russell Hopkins, Grace Ferrier, Anisa Kassamali, and Antonia Eklund (instructed by PGMBM LAW LTD t/a Pogust Goodhead) for the Claimants; Daniel Toledano KC, Shaheed Fatima KC, Victoria Windle KC, Nicholas Sloboda KC, Maximillian Schlote, and Joe Johnson (instructed by Slaughter and May) for the Defendants; Vernon Flynn KC, Crawford Jamieson, and Charles Wall (instructed by White & Case) for the Third Party.

Judicial Panel: Mrs Justice O'Farrell

Case Citation Reference: [2024] EWHC 953 (TCC)