gov.uscourts.nysd.447706.57.3.pdf

Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 1 of 39 EXHIBIT 3 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 2 of 39 258 West London Pipeline v Total UK [2008] 2 CLC West London Pipeline and Storage Ltd & Anor v Total UK Ltd & A Ors. [2008] EWHC 1729 (Comm) Queen’s Bench Division (Commercial Court). Beatson J. B Judgment delivered 22 July 2008. Specific disclosure – Litigation privilege – Cross-examination – When court could go behind affidavit of documents – Third party sought specific disclosure of documents – Litigation privilege claimed – Material sought gathered in course C of investigations into incident – Dominant purpose of investigations so that solicitors could provide legal advice in connection with expected proceedings – Implied statutory duty to investigate but no duty to report – Affidavits did not enable court to conclude that claim for privilege established – Maker of affidavits required to swear further affidavit dealing with matters on which earlier affidavits not satisfactory – Not appropriate to order cross-examination D – Civil Procedure Rules 1998, r. 32.7 – Control of Major Hazard Regulations 1999. This was an application by the third party (TAV) for specific disclosure of documents over which the defendants had asserted litigation privilege. E The proceedings arose out of the explosion and fire at the Buncefield Oil Terminal in Hertfordshire in December 2005. The fire engulfed a large proportion of the terminal’s site and caused injuries to individuals and very significant damage to properties in the area. Negligence had been admitted. There was to be a trial of preliminary issues to determine, among other things, F who was the operator of the site for the purposes of the Control of Major Hazard Regulations 1999 (‘the COMAH Regulations’), which applied to the site, and who was responsible for the negligence and thus liable for the consequences of the incident. Those issues involved determining whether the relevant persons working at the terminal were ‘embedded’ into Hertfordshire Oil Storage Ltd G (HOSL) so that HOSL alone would be vicariously liable for any negligence on the part of those persons. HOSL was a joint venture between Total and Chevron. TAV was the engineering company which designed and manufactured the high level switch which was fitted to Tank 912 from which the fuel spilled. The material TAV sought from the Total defendants and from HOSL was factual H material gathered by them in the course of their investigations into the incident. It included interviews conducted, the outcome of the investigations the operator of the site undertook as part of the safety management system it was required to have by the COMAH Regulations, and the reports of the accident investigation teams set up by Total and HOSL. The Total defendants and HOSL resisted the © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 3 of 39 QB West London Pipeline v Total UK 259 A applications on the ground that the investigations fell within the rule in Waugh v British Railways Board [1980] AC 521 and were covered by litigation privilege. Their evidence was that it was expected that civil and criminal proceedings might be brought against them and that the dominant purpose of the investigations was to identify the causes of the explosion so that their solicitors could provide legal advice in connection with the expected proceedings. They argued that B the dominant purpose of the accident investigations was to obtain factual information so that the lawyers could provide advice about the contemplated proceedings, and that there was no jurisdiction to go behind an affidavit as to disclosure, including one claiming privilege, by ordering cross-examination. C Held, ruling accordingly: 1. Where a report was prepared pursuant to a statutory obligation the purposes of the instigator of the report were irrelevant. There should be no difference in principle where the obligation was a regulatory rather than a statutory obligation. However, the Total defendants’ claim for privilege could not be rejected on the D ground that the Total accident investigation reports and communications were produced pursuant to Total’s regulatory duties under the COMAH Regulations: while there might be an implied duty under the regulations to investigate, there was no duty to report; more fundamentally, it had not been established that Total was the operator of the site for the purpose of the COMAH Regulations. That E would be a major issue at the trial. (Lonrho plc v Fayed (No. 3) (The Times, 24 June 1993) and Re Barings plc [1998] 1 All ER 673 considered.) 2. There were a number of respects in which the Total defendants’ affidavits were not satisfactory. They did not enable the court to conclude that the claim for privilege had been established. They exhibited no documents in support of F what was said as to the purpose of establishing the Total accident investigation. However, in the light of the statement that the dominant purpose in setting up the investigation was to prepare for contemplated legal proceedings, it would not be appropriate to order inspection of the documents on the ground that the defendants had not satisfied the burden of proof. The affidavits did not disclose G all that they ought to disclose. A further affidavit should be sworn to deal with the matters which the earlier affidavits did not cover or on which they were unsatisfactory. (Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] 3 KB 850, Ankin v London & North Eastern Railway Co [1930] 1 KB 527 and National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2332 (Comm) considered.) H 3. On the assumption that there was jurisdiction to order cross-examination in this context, this was not an appropriate case for doing so. [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 4 of 39 260 West London Pipeline v Total UK [2008] 2 CLC A The following cases were referred to in the judgment: Ankin v London & North Eastern Railway Co [1930] 1 KB 527. Atos Consulting Ltd v Avis plc (No. 2) [2007] EWHC 323 (TCC). Attorney-General v Emerson (1882) 10 QBD 191. B Bank Austria Akt v Price Waterhouse (16 April 1997). Barings plc, Re [1998] 1 All ER 673. Biguzzi v Rank Leisure plc [1999] 1 WLR 1926. Birmingham & Midland Motor Omnibus Co Ltd v London & North Western Railway Co [1913] 3 KB 850. Fiona Trust Holding Corp v Privalov [2007] EWHC 39 (Comm). C Frankenstein v Gavin’s House-to-House Cycle Cleaning and Insurance Co [1897] 2 QB 62. Grant v Downs (1976) 135 CLR 674. Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027. D Highgrade Traders Ltd, Re [1984] BCLC 151. House of Spring Gardens Ltd v Waite [1985] FSR 173. Jones v Monte Video Gas Co (1880) 5 QBD 556. L (A Minor) (Police Investigation: Privilege), Re [1997] AC 16. Lask v Gloucester Health Authority (6 December 1985). London Fire and Emergency Planning Authority (LFEPA) v Halcrow Gilbert & Co E Ltd [2004] EWHC 2340 (QB). Lonrho plc v Fayed (No. 3) (The Times, 24 June 1993). McAvan v London Transport Executive [1982] CA Transcript 498. Motorola Credit Corp v Uzan [2003] 2 CLC 1026; [2004] 1 WLR 113. National Westminster Bank plc v Rabobank Nederland [2006] EWHC 2332 F (Comm). Neilson v Laugharne [1981] 1 QB 736. Nomura International plc v Granada Group Ltd [2007] EWHC 642 (Comm); [2007] 1 CLC 479. Purdy v Cambran (17 December 1999). R v Derby Magistrates’ Court, ex parte B [1996] AC 487. G R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563. Sumitomo Corp v Credit Lyonnais Rouse Ltd (2001) 151 NLJ 272; [2002] 1 WLR 479 (CA). Three Rivers District Council v Bank of England [2005] 1 AC 610. H Visx Inc v Nidek Co Ltd [1999] FSR 91. Waugh v British Railways Board [1980] AC 521. Winterthur Swiss Insurance Co v AG (Manchester) Ltd [2006] EWHC 839 (Comm). Yukong Lines v Rendsburg (17 October 1996, CA). © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 5 of 39 QB West London Pipeline v Total UK 261 (Beatson J) A G Pollock QC and C Blanchard (instructed by Halliwells) for the third party/ applicant. Lord Grabiner QC and A Maclean (instructed by Davies Arnold Cooper) for the first and second defendants/respondents. B P Edey (instructed by Edwards Angel) for the third defendant/respondent. JUDGMENT Beatson J: Introduction C 1. The principle issue in the applications before me is whether the court can go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means. The proceedings in which the applications have been made arise out of the explosion and fire at the Buncefield Oil Terminal in Hertfordshire on 11 December 2005. The fire engulfed a large proportion of the D terminal’s site and caused injuries to individuals and very significant damage to properties in the area. Several hundred million pounds are claimed. There is to be a trial of preliminary issues before David Steel J in October 2008. Negligence has been admitted. The principal issues now are between the defendants, Total UK Ltd, Total Downstream UK plc (the ‘Total defendants’) and Hertfordshire Oil Storage Ltd E (‘HOSL’). 2. The principal issues include: who was the operator of the site on December 11 for the purposes of the Control of Major Hazard Regulations 1999 (the ‘COMAH Regulations’), which applied to the site, and who was responsible for the negligence and thus liable for the consequences of the incident. These issues involve determining F whether the relevant people working at the terminal were ‘embedded’ into HOSL so that HOSL alone would be vicariously liable for any negligence on the part of those people. HOSL is a joint venture between Total and Chevron. If HOSL alone is responsible for the incident, the joint venture arrangements may mean that 40% of the financial consequences will ultimately be borne by Chevron. G 3. TAV Engineering Ltd (‘TAV’) is the engineering company which designed and manufactured the high level switch which was fitted to Tank 912 from which the fuel spilled. It is the third party in this action. In application notices dated 22 May and 17 June 2008 it seeks specific disclosure of documents over which the Total defendants and HOSL have asserted litigation privilege. TAV also applied to cross-examine Mr H Malcolm Jones, the Managing Director of Total UK Ltd, and Mr Richard Jones, a director of HOSL, who served affidavits in opposition to the applications, although no application notice supported by evidence was issued as required by CPR 32.7. During the course of the hearing the applications concerning HOSL were abandoned. TAV was right to do so. For reasons I give at the end of this judgment, those applications were unsustainable. [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 6 of 39 262 West London Pipeline v Total UK [2008] 2 CLC (Beatson J) 4. The material TAV seeks from the Total defendants and sought from HOSL is A factual material gathered by them in the course of their investigations into the incident. It includes interviews conducted, the outcome of the investigations the operator of the site undertook as part of the safety management system it was required to have by the COMAH Regulations, and the reports of the accident investigation teams set up by Total and HOSL. The Total defendants and HOSL resist the applications on the B ground that the investigations fall within the rule in Waugh v British Railways Board [1980] AC 521 and are covered by litigation privilege. In affidavits sworn on their behalf it is stated that it was anticipated that civil and criminal proceedings would be brought against them and that the dominant purpose of the investigations was to identify the causes of the explosion so that their solicitors could provide legal advice in connection with the anticipated proceedings. C 5. The Total defendants have also brought Part 20 proceedings against Chevron and Motherwell Control Systems (‘MCS’) who installed a computer controlled automatic tank gauging system and was responsible for maintaining that and the alarm system. The claim against TAV is for an indemnity or contribution on the basis D that TAV was negligent in the design, manufacture and supply of the switch that failed to operate, a failure which caused or contributed to the incident. The switch manufactured by TAV was fitted by MCS. It was designed to be triggered when the fuel rose to a predetermined distance from the tank top. When it was triggered, an alarm would sound in the control room and the flow of oil into the tank would cease. TAV has claimed an indemnity or contribution from MCS in the event that it is held E liable to pay Total anything. The evidence F 6. The evidence before me consists of three witness statements by Mr Robert Campbell, a partner in Halliwells LLP solicitors, on behalf of TAV, respectively dated 22 May and 17 and 19 June 2008, affidavits by Malcolm Jones, on behalf of the Total defendants, sworn on 27 June and 7 July 2008, and affidavits on behalf of HOSL by David Young, the partner in Eversheds LLP who attended the board meetings of HOSL on 5 and 12 January 2006, and Richard Jones, both sworn on 30 June 2008. I G leave aside the vital question of the purpose for which the investigations were set up, and summarise the non-contentious evidence in a broadly chronological way. 7. At midday on 12 December 2005, the day after the incident, Davies Arnold Cooper gave legal advice to Total’s lawyers in Paris. This was forwarded to Total UK H soon afterwards and, on the same day the Total Accident Inspection Team (the ‘Total AIT’) was set up. Its members were; Steve Ollerhead, then the Logistics Coordinator of Marketing Europe for Total France, Jon Cook, Total’s Safety Environmental and Quality Manager, John Donald, a Process Safety Expert, and Russell Poynter, Total UK’s Head of Legal and HSEQ. The Total AIT was supported by a back office team which included individuals from Total’s Paris headquarters. By then representatives © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 7 of 39 QB West London Pipeline v Total UK 263 (Beatson J) A of the Health and Safety Executive and the Environmental Agency were on the site and had taken control of it and all computer files and paperwork on the site. A notice dated 12 December and headed ‘Buncefield update for colleagues’ was posted on Total’s intranet in the name of Malcolm Jones. 8. Mr Ollerhead’s accident investigation progress report for 11–18 December, B dated 18 December, states that on 12 December Messrs Chamoux, Sebbane, Gabillet, Jegousse, and Blanckaert arrived from Paris and that Mr Poynter and another Total representative interviewed the two staff present at the time of the incident and the manager of the Buncefield terminal. Mr. Gabillet was at that time the Department Head of HSEQ Logistics Marketing for France. C 9. The entry in the progress report for 13 December refers to a list of questions of a general nature developed by Mr. Gabillet for the Executive Overview Group. It also states that it was agreed on that day that all email communication should be channelled through Mr Ollerhead to ensure confidentiality and that there was a meeting with the Health and Safety Executive on site to discuss how the HSE investigation would D proceed and to discuss eventual handover of the site to Total. 10. A notice dated 14 December posted on Total UK’s intranet over Malcolm Jones’s name and headed, ‘Total UK Investigation Team’ states that Malcolm Jones had appointed a Total UK team to investigate the incident. E 11. Mr Ollerhead’s accident investigation progress report records that on Thursday 15 December ‘the AIUK team met to discuss the terms of reference of the AI (see separate note)’. 12. HOSL’s Board met on 16 December and resolved to appoint lawyers to conduct F the defence of any criminal proceedings and to advise the Board whether the company needed to carry out its own investigation into the incident. 13. A document dated 18 December by Mr Ollerhead, and headed ‘Confidential and Legally Privileged’ deals with the organisation and objectives of the Total AIT. G Its introduction states: ‘It is of course vitally important that the accident investigation is carried out as effectively and quickly as possible in order to learn the lessons from this incident and to implement whatever actions are deemed necessary at other terminals.’ H 14. This document lists and describes the members of the team and the back office team. There is an organogram with the Total UK accident investigation team in the middle and lines above it to Total Paris and to Total UK’s Managing Director, Mr Malcolm Jones. There is a line below the Total AIT to the back office team, to Total UK and HOSL personnel as necessary (and through them to the Health and Safety Executive and the Environmental Agency), to consultants if required, and to Chevron- [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 8 of 39 264 West London Pipeline v Total UK [2008] 2 CLC (Beatson J) Texaco personnel. There was a query with regard to Chevron-Texaco whose role had A not then been agreed. There is also a line to Mr Coull of Total UK HSE on whose HSE expertise Mr Poynter is stated to have relied heavily. 15. Under the heading ‘terms of reference’, the document states that Total UK’s investigation would take place in parallel with the HSE investigation and that B experience from earlier investigations suggested that the HSE would probably not be interested in Total’s investigation and their main interest in Total at that stage was to be confident that they were cooperating fully. The proposed deliverables include ‘make recommendations for measures to be put in place to prevent a recurrence’, ‘reappraise existing risk assessments’ and ‘satisfy legal reporting and recording duties’. It is also stated that, ‘due to the urgent need to learn lessons and to make recommendations it C is suggested that a preliminary report is published by Friday 23 December’. 16. A memorandum from Mr Ollerhead dated 19 December 2005 was sent to a number of people in Total, including Mr Malcolm Jones, Mr Poynter, and others from locations in the UK, France and Belgium. It states inter alia that the Buncefield D explosion had many similarities to an explosion which occurred at Saint Herblain near Nantes and recommends that the ‘back office’ team in Paris look into the lessons learned from that incident ‘and what we know so far of the incident at Buncefield to come up with proposals for a ‘SAFETY/FLASH’ report for rapid implementation in order to minimise the risk of this type of explosion happening again’. This memorandum is headed ‘Confidential and legally privileged’ and Mr Ollerhead states E that recipients should ensure that any replies by email also have this heading. On 19 December Russell Poynter emailed Barbara Dyer at Chevron, stating inter alia that ‘the TOTAL investigation team will be required by its parent to continue with its work’. F 17. On 20 December 2005 the Health and Safety Commission exercised its power to require the Health and Safety Executive and the Environmental Agency to investigate the incident. The Buncefield Major Incident Investigation Board (‘BMIIB’) was set up under the chairmanship of Lord Newton of Braintree and is doing so. Its terms of reference include; a thorough investigation of the incident, establishing causation including root causes, identification of information requiring immediate action and G recommendations for future action to ensure management of major incident risk sites governed by the COMAH regulations. The terms of reference envisage that the BMIIB’s report for the HSE and the EA would, subject to legal considerations, be made public. The BMIIB has produced progress reports in February, April and May 2006 and an ‘initial report’ in July 2006. The health and safety investigations after H the incident suggest that the TAV switch fitted to Tank 912 did not have the padlock used to hold the check lever in its normal operational position in place and that the check lever had either fallen or been left considerably below its proper operational position. © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 9 of 39 QB West London Pipeline v Total UK 265 (Beatson J) A 18. On 21 December DLA Piper Rudnick Gray Cary LLP met Total’s in-house legal team and were instructed in relation to possible criminal proceedings against Total. 19. On 22 December HOSL’s Board authorised its Company Secretary and in- house lawyer to seek advice from solicitors as to whether it should carry out its B own investigation. Following receipt of such advice, on 5 January 2006 HOSL’s Board resolved to set up a separate HOSL accident investigation team. The team was approved at a Board meeting on 12 January and it reported to the Board through HOSL’s solicitors, Eversheds. C 20. The material before the court includes a number of other documents published by Total UK Ltd. There are a number of versions of Total UK Ltd’s Incident Reporting and Investigation Application Guide (‘the Guide’), dated between January 2004 and February 2006, but there are no material differences between them. The cover of the Guide states ‘this Application Guide provides a mandatory system for the reporting and investigation of all incidents and near misses throughout Total UK Ltd’. D 21. In the section on its scope, it is stated that the Guide applies throughout all of the various operating areas of the company and that all significant incidents or near misses involving Total UK’s staff or contract staff that occur on Total premises, or while working for Total, must be reported. It is also stated that the guide covers E investigation and that the investigation’s purpose is to examine the events leading up to the incident, during the incident and the final outcome. This, it is stated ‘will aid the discovery of root causes from which remedial action plans can be developed’. 22. The Guide states there is provision for the electronic recording of incident reports and investigations and the downloading of such material onto a database F system. The information held on the database includes relevant data concerning the incident to allow prompt reporting to line management, the insurance department, the HSEQ department and the relevant authorities. It includes a calculation of the loss potential to determine the level of investigation required, and a description of any immediate actions that have been taken to rectify the situation and to prevent the G incident from occurring again. The ‘investigation and review’ section of the database contains information about the investigation taken to identify the immediate and root causes of the incident and an action plan to address them. It also refers to a review of high potential incidents by senior management to ensure that all necessary steps have been taken to prevent the incident from happening again, and a final review by the HSEQ department to ensure that the incident was appropriately reported and H investigated and that suitable corrective and preventive actions have been identified and put in place. 23. In the case of incidents with a high potential there is a mandatory requirement of a formal team SCTA (Systematic Causal Tree Analysis) investigation. The Guide states that the categorisation of an incident as of ‘low’, ‘medium’, or ‘high’ [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 10 of 39 266 West London Pipeline v Total UK [2008] 2 CLC (Beatson J) potential depends on the score achieved in matrices of potential severity factors and A probability of reoccurrence factors. Guidance is given as to the application of the two matrices. Thus an incident that causes multiple fatalities, or major pollution with sustained environmental consequences, or over £6 million loss is categorised as catastrophic. To qualify as being of high potential a score of 8 or more has to be achieved. Accordingly, an incident with ‘catastrophic’ potential severity but a B ‘remote probability’ of reoccurrence would only qualify as of ‘medium’ potential. The Guide requires an incident report to be completed within one working day, and an investigation to be completed within 10 working days. It states that ‘any fire or explosion’ should be reported on the database. 24. The major accident prevention policy, applicable to the Buncefield site, which C is headed ‘Totalfina Terminal: HOSL’ and ‘Totalfina Great Britain Ltd.’ states that the company are committed to ‘evaluate and report our accidents and near misses’. It also states that procedures, systems and processes have been put in place to manage the integrity of the company’s activities. Paragraph 4 of the section concerned with realising the policy states ‘we will report and investigate incidents and near misses D and follow up as necessary to improve our performance’. This document is signed by Mr White, then Buncefield’s Terminal Manager, and Mr Ollerhead, then Total’s Director of Logistics. It will be recalled that Mr Ollerhead was a member of the Total Accident Investigation Team. 25. Element 5 of Total’s Loss Control Manual is headed ‘Accident Investigation’ E This states: ‘There is a formal procedure HSEQ20, for investigating accidents or near misses. This procedure is aimed at fact finding rather than fault finding, and seeks to establish basic or root causes of any accident or incident in an effort to prevent F a reoccurrence.’ 26. HSEQ20 is Total’s Incident reporting and Investigation Application Guide to which I have referred. The Loss Control Manual also states that in the case of specified accidents or near-misses, including major fires and spillages: G ‘A report must be completed and sent within one working day, with any necessary immediate actions recorded. Where an investigation is required this must be completed within ten working days, followed by a review meeting to ensure that all required actions have either been implemented or programmed.’ H 27. An undated document entitled ‘Spillage Procedure EP03’ states that spillages are considered ‘critical failures’ which are to be reported. The September 2005 job specification for safety advisers at terminals includes responsibility for ensuring ‘that all incidents are appropriately investigated within 10 working days and that copies are sent to the relevant persons as defined in the Application Guide’. © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 11 of 39 QB West London Pipeline v Total UK 267 (Beatson J) A 28. Total UK’s corporate social responsibility policy, authorised in May 2005, contains a statement by Mr Malcolm Jones that ‘health and safety is a paramount priority for the company’ and that it is committed to complying with legislation appropriate to its activities to minimise the risk to health and safety at work to all employees, contractors, customers, local communities, and general public. Its B environmental charter signed by Thiery Desmarest, its Chairman and CEO, also refers to safety as a paramount priority, the formulation of relevant action plans and suitable control procedures and ‘emergency facilities and procedures … in order to respond effectively in the case of accidents’. C 29. Total UK’s Environment and Social Responsibility Report 2006 contains an introduction signed by Michel Contie, a senior vice president for Northern Europe. The introduction states that Total continues ‘to put safety at the forefront of everything we do and the company acts on near misses’. The introduction also states: ‘We are still analysing lessons learned from the December 2005 fire at the D Buncefield terminal operated by Hertfordshire Oil Storage Ltd (HOSL), in which we are a 60% share holder. While still awaiting the findings of the official enquiry, we are nonetheless working with the industry and the regulators to share information and consider lessons learned.’ E 30. The Corporate Social Responsibility section of the report refers to safety reporting and internal audits. The section on health and safety has a section entitled ‘Lessons from Buncefield’. This states: ‘Following the fire at Buncefield terminal in 2005, investigations have been carried out by the Health and Safety Executive (HSE), the Environment Agency, F site operator Hertfordshire Oil Storage Ltd (HOSL) and Total. In parallel, a task group comprising a number of working groups with both regulator and industry representatives has very successfully brought together all the industry stakeholders including unions to share learnings and recommend improvements across the industry. G Although we still await the HSE’s final report and response, along with the rest of the industry we have already taken many actions including assessments of remotely operated shut off valves and tank alarms set points.’ 31. An update notice about the Buncefield incident posted on Total UK’s intranet H on 10 February 2006 over Malcolm Jones’s name states inter alia ‘there are three investigation teams currently working to ascertain the cause of the incident. One each from the HSE, Total and HOSL’. [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 12 of 39 268 West London Pipeline v Total UK [2008] 2 CLC (Beatson J) The COMAH Regulations A 32. These regulations impose obligations on the operator of the Buncefield site. The COMAH Regulations define the operator of a site as ‘a person who is in control of the operation of an establishment or installation’: reg. 2(2). Regulation 5 requires the operator to have a Major Accident Prevention Policy (‘MAPP’) document with B sufficient particulars to demonstrate it has established a Safety Management System (‘SMS’), taking account of the principles specified in the regulations (reg. 5(3)). 33. Regulation 4 imposes a general duty on operators to take ‘all measures necessary to prevent major accidents and limit their consequences to persons and the environment’. It was submitted on behalf of TAV that the ‘measures’ include C investigations into incidents. Regulation 5(5) requires the operator to implement the policy set out in its MAPP document. 34. Regulation 7(7) requires the operator of an existing establishment to send to the competent authority (the Health and Safety Executive and Environmental Agency D combined) a safety report containing the information specified in the schedule. Schedule 2, which applies to regulation 5(3), provides that the Safety Management System issue shall address monitoring performance and ‘the mechanisms for investigation and taking corrective action in the case of non compliance’ (paragraph 4(f)). Paragraph 4(f) also provides that the procedures should cover the operator’s system for reporting major accidents or near misses, ‘and their investigation and E follow up on the basis of lessons learned’. The purpose of safety reports, including those required by regulation 7(7), is to demonstrate that a safety management system for implementing the major accident prevention policy has been put into effect and that adequate safety and reliability have been incorporated into the design and construction, and operation and maintenance of any installation and equipment. F The requests for the documents and the claim to privilege 35. On 13 March 2008 Pinsent Masons, which acts of behalf of some of the claimants in the action, wrote to Total’s solicitors, Davies Arnold Cooper, about a number of disclosure matters. Paragraph 9 of this letter states: G ‘… There are certain categories of post-incident documents, including (i) investigation report or “root cause” analysis carried out by your clients or HOSL and (ii) documents generated as a result of the HSE investigation which ought to have been, but do not appear to have been, disclosed. As to (i) it is common H practice within the industry for oil companies to prepare such reports/analyses following major health and safety incidents which occur during the course of their operation. Indeed, the COMAH regulations require the operator of sites such as HOSL to have in place a major accident prevention policy, which includes procedures for reporting major accidents or near misses, particularly those involving failure of protective measures … Any such report would go into © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 13 of 39 QB West London Pipeline v Total UK 269 (Beatson J) A significant detail as to the causes of the incident and would be of considerable evidential value. There is no obvious reason why any such documents would be privileged. As to (ii), we consider that documents which passes between your clients/HOSL and the HSE in the course of its investigation would not be privileged and ought to be disclosed, including final witness statements.’ B 36. On 4 April, Pinsent Masons wrote to Davies Arnold Cooper and Herbert Smith noting that although Davies Arnold Cooper had indicated it would revert on the matters raised in paragraph 9 and other paragraphs ‘in due course’. They had not had a response. The letter states that they are principally concerned to see documents pertaining to Total’s post incident investigation or root cause analysis into C the incident. The letter enclosed a copy of the email from Russell Poynter to Barbara Dyer at Chevron to which I have referred. 37. Davies Arnold Cooper responded to Pinsent Masons in a letter dated 23 April. The material parts of this letter state: D ‘In the immediate aftermath of the Buncefield incident, by which we mean the morning of the incident itself, Sunday 11 December 2005, it was apparent to senior members of our client’s management structure, including Mr Russell Poynter, Head of Legal at Total UK Limited (“Total”), that the size and scale of the incident was such that civil claims for compensation were inevitable and E that, given our clients’ connection with the terminal amongst others, it was likely that they would be parties to those proceedings. It was also apparent that there was a real prospect of criminal prosecution under health and safety legislation. There was therefore an immediate recognition that it would be necessary to ascertain the causes of the explosion in order to obtain properly informed legal advice and to defend Total’s position in the anticipated legal proceedings. F Accordingly, whilst there also existed Total’s own internal requirements for an accident investigation and the requirement under the COMAH regulations for the reporting of major incidents, the immediate and primary purpose of the investigation which followed was to obtain a detailed factual understanding of the causes of the incident in order that Total’s legal advisers could be properly G informed when providing legal advice and more specifically when defending Total’s interests in the anticipated legal proceedings. At midday on 12 December 2005, that is fewer than 36 hours after the incident, this firm provided a report containing detailed legal advice to Total’s Parisian lawyers which was forwarded to our clients at 14.57 on 12 December 2005. That H document, inter alia, highlighted the requirement for investigations to ascertain the cause of the incident so that lawyers could be properly instructed for the purposes of the anticipated civil and criminal proceedings. It is in this context that Total’s Accident Investigation Team (“AIT”) was created on Monday 12 December. … [2008] 2 CLC 258 Commercial Law Cases8 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 14 of 39 270 West London Pipeline v Total UK [2008] 2 CLC (Beatson J) On 21 December 2005, a meeting was held between six members of Total’s in A house legal team, including Mr Poynter, and Total’s newly appointed criminal solicitors, Messrs DLA Piper Rudnick Gray Cary LLP (“DLA”). At that meeting, DLA repeated that in order to be able to provide clear and unambiguous advice in connection with the anticipated criminal proceedings, they needed to know the full facts surrounding the incident. DLA emphasised the requirement for B Total’s investigations to be aimed at explaining the factual position in order that Total’s defence to the contemplated criminal prosecution could be properly formulated. The advice provided during the course of that meeting was reiterated and amplified in detail in a briefing note to Total dated 6 January 2006, which was acted upon by Mr Poynter in his capacity as Total’s Head of Legal and as a AIT member. C We confirm that the AIT referred to above produced various reports between 22 December 2005 and 23 June 2006. Those documents were created for the dominant purpose of identifying the causes of the explosion in order that our clients’ solicitors could provide legal advice in contemplation of the expected D civil litigation and criminal proceedings and to assist them to defend Total’s interests in the civil proceedings once they were commenced. They are therefore privileged. It is not disputed that the AIT investigation and reports also address lessons that could be learned from the incident and fulfilled COMAH requirements. However, for the reasons already explained, those purposes were subsidiary and subservient to the dominant purpose as set out above.’ E 38. The letter also deals with other reports which it states were prepared for the dominant purpose of assisting Total in its defence of civil and criminal proceedings and notes of interviews by the competent authority prepared by Total’s lawyers who were present and in respect of which legal advice privilege as well as litigation F privilege is asserted. It also deals with other interviews and the HOSL post incident investigation in respect of which both legal professional privilege and common interest privilege were claimed. 39. On 7 May, Halliwells replied stating they did not agree that Total’s investigations were privileged and that the relevant question should be whether the G investigation following the incident would have been undertaken even if there was no reasonable anticipation of proceedings. On 14 May, Davies Arnold Cooper replied stating that they had nothing to add to their further letter and maintaining their claim to privilege. H 40. Following TAV’s application against the Total defendants, Halliwells wrote stating that they would be issuing a specific disclosure application against HOSL and stating that Davies Arnold Cooper’s position in the letters dated 23 April and 14 May ‘can be characterised as a bare assertion that the documents in question were created for the dominant purpose of obtaining legal advice in anticipation of litigation’ and that despite the invitation to do so ‘you have chosen not to expand on that assertion © DSP Publishing Ltd [2008] 2 CLC 258 Case 1:15-cv-07433-RWS Document 57-3 Filed 03/14/16 Page 15 of 39 QB West London Pipeline v Total UK 271 (Beatson J) A in correspondence’. The letter then sets out the basis upon which TAV disputes the claim that the applicable ‘dominant purpose’ test has been satisfied and particularises the documents sought. 41. On 17 June the application was issued against HOSL. Halliwells’ letter dated 18 June accepts that the documents had not previously been requested directly from B HOSL and that HOSL and its solicitors had not expressed any comments in relation to HOSL’s entitlement to assert privilege. 42. There were further exchanges between the solicitors about the service of evidence. In their letter dated 27 June enclosing Mr Malcolm Jones’ affidavit, Davies C Arnold Cooper provided two of the documents sought by TAV, a report entitled ‘Initial Findings on the Ultra High Alarm Functioning Testing carried out by HSE and HOSL’ and the preliminary analysis of the Motherwell disk data. The letter states that these reports are subject to legal professional privilege but that Total is willing to waive privilege in these documents which were not prepared under the auspices of either the Total accident investigation team or the HOSL accident investigation team. D 43. In a letter dated 30 June 2008, Halliwells asked Davies Arnold Cooper to confirm that Mr Malcolm Jones would be available for cross-examination at the hearing. A similar request was made to Edwards Angel Palmer and Dodge in respect of Mr Richard Jones. Neither request gives a reason for the request for cross- E examination of the affidavit of a witness at an interlocutory hearing. No reasons were given in relation to the request concerning Mr Richard Jones. In a letter dated 2 July to Davies Arnold Cooper, Halliwells state, relying on LFEPA v Halcrow [2004] EWHC 2340 (QB) that the court has jurisdiction to order cross examination on an affidavit and this ‘is particularly so when the affidavit in question cries out for elucidation, as is the case with Mr [Malcolm] Jones’ affidavit’. F 44. Although Davies Arnold Cooper’s letter of 23 April containing reasons the writer regards the documents sought as privileged is before the court, there is no affidavit in support of the claim from a member of the firm. The evidence in support of the claim is contained in Mr Malcolm Jones’ first affidavit. Paragraph 5 lists the G members of the Total AIT and states that Russell Poynter is a member ‘in his capacity as Total’s Legal Manager’. The affidavit also states: ‘4. As Managing Director of TUKL, my duty is to protect its best interests. In that capacity, I was responsible for setting up the Total Accident Investigation Team (“AIT”) on 12 December 2005 in response to the major fire and explosion H