When considering a claim of legal professional privilege in answer to a request for the examination of a witness, a solicitor's own assertion that the dominant purpose of a particular communication was the obtaining of legal advice was not conclusive: it was a matter for the court to determine on the basis of the whole of the evidence before it. Moreover, the court should not make an order for the examination of a witness if it was satisfied that the letter of request was mainly of an investigatory character, even though it was satisfied that the witness might be able to give some relevant and admissible evidence, unless it was possible to exclude certain areas of the request without undue difficulty.Application by the claimant ('the USA') for orders that two witnesses ('F' and 'B') be examined for the purposes of making their evidence available pursuant to letters of request issued by the district court for the District of Columbia. F, a solicitor, had advised a number of companies in the British American Tobacco (Investments) Ltd group ('BAT'), and B was chairman of one of those companies. The USA had brought claims against a number of tobacco companies, including BAT, alleging that they had engaged in an unlawful enterprise to deceive and defraud consumers of cigarettes about the health risks of smoking and about their knowledge and attitude to those risks. The USA had claimed that the tobacco companies took steps to ensure that documents which could be damaging in litigation were destroyed or suppressed. It had previously been asserted that F had played a central role in the creation and implementation of document destruction policies. However, no improper conduct was alleged in this application. The evidence sought from B related to the structure of companies, and to corporate reorganisations within the BAT group. It was not disputed that F and B could give relevant and admissible evidence bearing on the American litigation. BAT submitted that: (i) all communications between F and BAT had been protected by both legal advice privilege and litigation privilege, and that F's work had involved giving general legal advice to BAT in relation to the nature and scope of claims by smokers and in relation to the obligation of disclosure under English law; (ii) an examination covering the range of matters described in the letter of request would place an excessive burden on F since a list of questions had not been provided in advance and, given the length of F's involvement with BAT, he could not be expected to separate knowledge derived from communications that were privileged from knowledge derived from communications that were not; (iii) the real object of the order sought in respect of B was for the USA to carry out an "impermissible investigatory exercise" (per First American Corporation & Anor v Sheikh Zayed Bin Sultan Al-Nahyan & Ors (1999) 1 WLR 1154); and (iv) the subjects on which the USA sought to take B's evidence were so vaguely defined that it would be unfair to require him to be examined on them.HELD: (1) A solicitor's assertion that the dominant purpose of a particular communication was the obtaining of legal advice was not conclusive. It was a matter for the court to determine on the basis of the whole of the evidence before it (Three Rivers District Council & Anor v Bank of England (2003) EWCA Civ 474, Three Rivers District Council & Ors v Bank of England (2003) EWHC 2565 (Comm) and Balabel & Anor v Air India (1988) Ch 317 considered). While the evidence suggested that many of the communications between F and BAT were protected by legal advice privilege, other communications such as advice about an organisation and review of documents less clearly fell within the scope of the privilege. That was not sufficient to justify refusing to make an order for F's examination. (2) As litigation against BAT companies was not reasonably in prospect when F was first instructed, not all communications were inevitably subject to litigation privilege. BAT could claim privilege in respect of those parts of a privileged document that retained their confidentiality when other parts of the document had wrongly entered the public domain and had been relied upon in proceedings in another jurisdiction. (3) The scope of the matters on which F's evidence was required was not so wide as to render an examination oppressive in itself. Any risk of oppression could be dealt with by giving directions for the conduct of the examination, which might include directions requiring the USA to identify more specifically the questions it wished to ask. (4) The court should not make an order for the examination of a witness if it was satisfied that the letter of request was mainly of an investigatory character. This was so even if the court was satisfied that the witness might be able to give some relevant and admissible evidence, unless it was possible to exclude certain areas of the request without undue difficulty (In re State of Norway's Application (1987) QB 433 and State of Minnesota v Philip Morris (1998) ILPR 170 considered; First American Corporation v Al-Nahyan (supra) applied). The letter of request in respect of B, which was in extremely broad terms, had been designed to enable the USA to conduct a broad investigation into the relationships between the companies in the BAT group rather than to obtain B's evidence on specific topics for use at trial. (5) Order for the examination of F granted, with a direction that the examination be conducted by English counsel before a judge of the Commercial Court. Order for the examination of B refused.Order accordingly.
 EWHC 3028 (Comm)