The Litigation Privilege Predicament ' The State Of Qatar v Banque Havilland SA

• Published date: 07 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: BCL Solicitors LLP
• Author: Mr Richard Reichman and Suzanne Gallagher

Introduction

Managing an organisation's response to a regulatory crisis is a complex process. An important factor to be considered is whether a party can rely on litigation privilege in relation to any investigative materials which are produced. If so, potentially sensitive materials are protected from disclosure to a regulator or other third party.

The difficulties of claiming litigation privilege following legal developments over recent years were again illustrated by the findings of David Edwards QC sitting as a Deputy Judge in the High Court Queen's Bench Division in The State of Qatar v Banque Havilland SA and Vladimir Bolelyy [2021] EWHC 2172 (Comm). In particular, the challenge of successfully arguing that litigation was reasonably in contemplation and that the work product was for the sole or dominant purpose of the litigation.

The Alleged Conspiracy

The claim for damages by the State of Qatar concerns the alleged involvement of the Defendants, Banque Havilland SA ("the Bank") and a former employee of the Bank ("Mr Bolelyy"), in a conspiracy to harm the Qatari economy by manipulating the market in Qatari Riyal (the currency of the State of Qatar) and USD Qatari bonds.

Two separate media articles reported these allegations. The second article (from November 2017) contained screenshots of slides from a PowerPoint presentation said to outline the strategy for the market manipulation conspiracy. The PowerPoint presentation metadata identified Mr Bolelyy as its author.

The Disclosure Dispute

The parties gave disclosure in the civil case following directions from the Court. Both Defendants' disclosure certificates stated that certain documents or parts of documents were being withheld. The Bank claimed that certain documents were not disclosed as they were covered by legal professional privilege.

Qatar subsequently made a disclosure application and sought to challenge several alleged disclosure deficiencies, including that a report prepared by PwC (dated June 2018) for the Bank was covered by litigation privilege.

Purpose of the PwC Report

On 13 November 2017, following an emergency meeting and various discussions, the Board of the Bank formally ratified a decision that PwC would be engaged to carry out a forensic investigation. The PwC instruction was described in internal correspondence as a "technical forensic audit" and a "forensic/IT investigation". The minutes of the 13 November board meeting indicated that PwC were to "audit [the] trail of [the...