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Court in the Act
8 September, 2004  
Cancer stick privilege finds favour with British appeal judges

With the greatest respect, the English Court of Appeal says its counterpart in NSW was not thinking straight. A number of cancer stick manufacturer BATCo’s deeply embarrassing documents should be privileged.


imageHow hopeless are the Poms? Their Court of Appeal in the Strand, with Mummery LJ (pictured) in the saddle has gone against the refined thinking of the NSW Court of Appeal and said that cancer stick manufacturer British American Tobacco had not waived privilege in certain priceless, and presumably deeply embarrassing, documents.

The US Justice Department is suing BATCo and other large cigarette companies under the Racketeer Influenced and Corrupt Organisations Statute (RICO) for at least billion. The allegation is that these truly dreadful corporations deceived and defrauded the American public about the health risks of consuming ciggies and about their knowledge of the risks.

The case involves the production of about 40 million documents on discovery. BATCo has been desperate to claim legal privilege on a bundle of documents prepared for an examination, under a letter of request from the District Court in Washington, of Andrew Foyle a partner in the big London law shop of Lovells.

Foyle is one of the boys whose fingerprints are all over BATCo’s notorious “document retention policy”. He was mentioned in dispatches by Geoffrey Eames J in McCabe v British American Tobacco (March 22, 2002) as the author of the Foyle Memorandum, a key piece of evidence in that case.

imageIn the memo Foyle (pictured) sought to ginger-up the document retention policy. He said that what was required from Clayton Utz (solicitors for the Australian subsidiary) was “a strategy for handling the documents in issue in litigation”.

In particular, he was concerned that because the Australian subsidiary had access to sensitive BATCo research documents, through a computer link to England, there could be discovery of BATCo documents in Australian proceedings.

His suggestions to Brian Wilson and the lads at Clutz led to a refreshed documents retention policy from 1990 onwards.

Anyway, the primary judge in London, Moore-Bick J, held that legal privilege in the documents had been waived by BATCo.

That’s what Spigs CJ, Holy Handley and Buster Bryson also found in the NSW Court of Appeal when BATCo and its local offshoot unsuccessfully argued for privilege in response to the US letter of request to examine the former head of the London company’s legal department, Nicholas Cannar.

The NSW court said that in America BATCo had voluntarily entered into the Minnesota Consent Judgment, under which the cancer stick boys agreed to a system of court approved release of documents placed by the manufacturers in a depository, subject to the terms of a protective order.

imageCannar was subsequently examined before Brownie AJ and his evidence has been forwarded under wraps to Judge Gladys Kessler (pictured) in Washington.

Even though Foyle was examined in England in response to the letter of request BATCo appealed against Moore-Bick’s orders.

According to Mummery, the appeal was not about a “moot point”, as counsel for the US argued, even though the issue was a “pinhead” involving only “a few documents”.

BATCo claimed there were “potentially serious ramifications” because Moore-Bick’s orders opened the way for worldwide litigation, as well as the danger that company documents might be deployed in other litigation, whether or not BATCo was a party to it.

BATCo argued it had not voluntarily waived privilege but had been compelled to produce documents by a court order made in accordance with the Minnesota Consent Judgment.

Mummery said:

“With great respect to the judge and to the courts in the US and Australia, I have reached a different view on the effect of the Minnesota Consent Judgment in English Law in the context of waiver of privilege in communications.”

His Lordship found that the documents in the Minnesota Depository were not voluntarily disclosed.

“Far from being voluntarily disclosed and made public during the litigation, the documents in question had been protected from public disclosure by being placed in a depository and made the subject of a protective order of Judge Fitzpatrick dated 16 June 1995.”

He thought that BATCo’s consent to court-controlled approval of the release of the documents wasn’t the same as actually approving the public release of the documents.

“The provisions in the MCJ do not automatically make the document in question available to the public nor do they confer on the plaintiffs in the action any absolute right either to make them public or to have the approval of the court to release them to the public.”

He found it compelling that BATCo had objected to the court granting approval.

“In those circumstances I conclude that it is impossible to say that BATCo has voluntarily and of its own free will, expressly or impliedly waived privilege in the documents, which only became available to the public after the court gave its approval overriding the objections of BATCo.”

And finally:

“Privilege is not lost under English law because it cannot be claimed in another country.”

Britannia rules – with the greatest respect, of course.