“ 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.”
“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 a reoccurrence.”
“We are still analysing lessons learned from the December 2005 fire at the 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.”
“Following the fire at Buncefield terminal in 2005, investigations have been carried out by the Health and Safety Executive (HSE), the Environment Agency, 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. 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.”
“…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 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 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.”
“In the immediate aftermath of the Buncefield incident, by which we mean the morning of the incident itself, Sunday11 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 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. 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 informed when providing legal advice and more specifically when defending Total’s interests in the anticipated legal proceedings.” “At midday on12 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 on12 December 2005 . That 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. …” “On21 December 2005 , a meeting was held between six members of Total’s in 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 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 dated6 January 2006 , which was acted upon by Mr Poynter in his capacity as Total’s Head of Legal and as a AIT member.” “We confirm that the AIT referred to above produced various reports between22 December 2005 and23 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 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.”
“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”) on12 December 2005 in response to the major fire and explosion at Buncefield on Sunday11 December 2005 (the “incident”).” “6 At the time that I set up the AIT, the Health and Safety Executive (“HSE”) and the Environmental Agency (“EA”) were already on site and had started their investigation. These investigations are ongoing. The HSE took control of the Buncefield site and of all access to all computer files and paperwork on site in order to carry out their investigation. The investigation was then the HSE’s highest priority investigation and in the region of 40 HSE personnel were involved from the outset. The purpose of the HSE’s investigation was to find out what happened and the cause or causes of the incident. Total has at all times fully cooperated with the HSE’s investigation.” “7 As soon as I learned of the incident, my immediate concern was to ascertain the extent of any injuries and other damage. Having quickly established that only minor injuries had been suffered, I then turned my mind to the risks affecting Total as a Company. I was fully aware of the likelihood of both civil and criminal proceedings and that Total needed to establish the facts in order to be in a position to defend its interests in relation to any proceedings.” “8 In setting up the AIT, the main risks to Total which I was concerned with were: (1) the risk of criminal proceedings being brought either by HSE or the EA; (2) the risk of civil claims being brought by third parties; and (3) the risk to the image and reputation of Total. I considered TUKL to be at real risk of potential proceedings following the Incident. The fact that the terminal was under joint venture control through Hertfordshire Oil Storage Limited did not make me feel Total was free of risk of litigation. I expected that parties who had suffered damage might very well explore the chance to claim from Total. My objective in setting up the AIT was therefore to gather facts in order that Total could address these risks and, in particular, secure legal advice in respect of any criminal and civil proceedings.” “9 Given that the primary purpose of the AIT was to prepare for criminal and civil claims and get legal advice, I appointed Russell Poynter, Total’s Legal Manager, to the AIT from the outset. There is no provision for the inclusion of a legal representative on accident investigation teams in Total’s procedures and this was the first time that Russell Poynter, or any other legal representative, had been included in a Total accident investigation team. Russell Poynter reported to me routinely in line with the primary purpose of the AIT and following the Incident, he took immediate steps to instruct external solicitors to act for Total. Davies Arnold Cooper were instructed to advise Total in respect of potential civil claims on the day of the Incident. DLA Piper (“DLA”) were instructed on21 December 2005 to advise Total in respect of potential criminal liability.” “10 On their appointment DLA took over responsibility for the AIT and from then onwards Russell Poynter and DLA reported to me in respect of the AIT’s progress. I had regular updates from both Roy Tozer, the partner at DLA, and Russell Poynter as to the progress of the AIT.” “11 Of course, the AIT investigation would by necessity carry out a factual analysis and look at what went wrong and what lessons could be learned. However, this was not the primary purpose for which the AIT was established. I knew that the HSE investigation would consider the lessons to be learned by Total and others in the industry. My main concern was to protect Total from the risks I have outlined above. Steve Ollerhead, Jon Cook and John Donald’s role on the AIT was to provide the appropriate expertise to establish the facts in order that the legal risks could be addressed. I wanted the members of the team to have a free rein to investigate the facts in order that the lawyers and I could understand the risks identified above as soon as possible.” “12 I have been shown a note prepared by Steve Ollerhead dated18 December 2005 attached to an email from Steve Ollerhead dated19 December 2005 to, amongst others, me. [the email and the documents attached to it are exhibited to Mr Jones’s affidavit] I understand that this email and its exhibits are among the documents over which TAV has challenged Total’s claim to privilege in this application. For the avoidance of doubt by referring to in and exhibiting this document to this Affidavit for the limited purposes of this application, I am not waiving Total’s legal professional privilege in it or in any other document or legal advice received by Total. I do not recall seeing this document at the time and do not believe I would have looked at the document as we were working mainly through oral communication at the time. In the aftermath of the Incident most of my days were spent either in meetings or on the telephone, and I was only reading emails which were specifically being brought to my attention. In his note of18 December 2005 , Steve Ollerhead sets out his understanding of the terms of reference of the AIT, in particular under the ‘Proposed Deliverables’ heading. Steve Ollerhead’s note reflects an incorrect understanding of my aims in instituting the investigation and does not encapsulate the primary purpose of the AIT as set out above. While the fact-finding exercise was important, the primary purpose of the AIT was not in relation to learning lessons for the future.” “ 13 It has been explained to me that TAV have asserted that (i) the AIT may have been set up in accordance with either HOSL’s Safety Management System (“SMS”) or TUKL’s corporate emergency response plan and (ii) that it would have been undertaken even if there were no resulting damage to non-Total property and no reasonable anticipation of litigation. Those assertions are not correct.” “14 In respect of HOSL’s SMS, that was only relevant to HOSL and had no bearing on Total’s response to the Incident. I presumed that HOSL would have had an SMS in place but I had no knowledge of its contents. As regards TUKL’s corporate emergency response plan, this is aimed at business recovery and focuses on how emergencies are handled by TUKL. In setting up the AIT, I did not have regard to any internal Total (or HOSL) procedures. In the normal course of events if an incident occurred at a joint venture site, the joint venture would carry out the investigation itself, not Total. I am aware of a number of occasions prior to the Incident when HOSL carried out its own investigation into incidents at the Buncefield site.” “15 In respect of TAV’s hypothetical suggestion that the AIT would nevertheless have been undertaken even if there were no resulting damage to non-Total property and no reasonable anticipation of litigation, I do not agree. The AIT was only set up because litigation was reasonably anticipated given the extraordinary nature of the Incident.”
“A claim for privilege is an unusual claim in the sense that the legal advisers to the party claiming privilege are, subject to one point, the judges in their own client’s cause. The court must therefore be particularly careful to consider how the claim for privilege is made out.”
“if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute but it is otherwise absolute.”
““Litigation privilege” extends, in time, to information (which must include information stored in electronic form as well as in documentary form) which is produced either during the course of adversarial (as opposed to inquisitorial or investigative) litigation, or when such litigation is in contemplation. The privilege obviously covers legal advice given by a lawyer to his client for the purposes of such existing or contemplated litigation. It also extends to communications between the lawyer and his client and the lawyer and third parties, provided that those communications are made for the sole or dominant purpose of obtaining legal advice or conducting that litigation. (Grant v Downs[1976] 135 CLR 674 , per Barwick CJ (dissenting in the result) at p 677, Waugh v British Railways Board[1980] AC 521 , Three Rivers DC v Bank of England (No 6) at paras 100 to 102 per Lord Carswell.) In deciding whether a communication is subject to “litigation privilege”, the court has to consider objectively the purpose of the person or authority that directed the creation of the communication. (Guinness Peat Properties Ltd v Fitzroy Robinson Partnership[1987] 1 WLR 1027 at 1037 per Slade LJ, with whom Woolf LJ and Sir George Waller agreed.)”
“First, at the time that the relevant communications were created, was litigation contemplated? Secondly, were the communications created for the dominant purpose of obtaining legal advice for that litigation or in aid of that litigation? Thirdly, under the direction of which person or entity, objectively speaking, were those communications created.”
“In my judgment the proposition that the dominant purpose of a document does not necessarily fall to be ascertained by reference to the intention of its actual composer is borne out by a number of recent authorities. Barwick CJ's formulation of the test [in Grant v. Downs] itself refers to the dominant purpose of its author 'or of the person or authority under whose direction, whether particular or general, it has produced or brought into existence'. These words are not to be read as if they had statutory force. Nevertheless, I think that in the present case the insurers are to be regarded as the persons under whose direction the McLeish letter was brought into existence, within the sense and spirit of this formulation. In Waugh itself, it seems clear that their Lordships were directing their attention not so much to the intentions of the two officers of the British Railways Board who prepared the report there under consideration as to the intentions of the board in directing them to prepare it. In that case the claim for privilege failed only because the purpose of obtaining legal advice in anticipation of litigation was of no more than equal weight with the board's purpose of railway operation and safety.”
“it lies upon the plaintiff to get rid of the effect of [the statement in the affidavit] by falsifying it” by which he meant that “he must establish by some means other than by a conflicting affidavit that the defendants’ affidavit is incorrect. … In order that the plaintiff may succeed in doing so, the Court must be satisfied with reasonable certainty either from the defendants’ own statements that they have erroneously represented or misconceived the nature of the documents, as was held to be the case in Attorney-General v Emerson, or from some source other than by affidavit that the defendants’ affidavit is incorrect.”
“I would not want it to be thought that the mere writing of such a letter by solicitors, whether for insurers or for anyone else, sometimes perhaps as a matter almost of routine drill, is in all cases going to be determinative of the question. At highest, it is no more [than] evidence of a fact which may require to be independently proved.”
“[I]f there is something in the circumstances of the case which shows that the affidavit evidence is wrong (as there was in Nielson v Laugharne), the court is entitled to go behind the affidavit, but I would not … feel able to subscribe to the view that the court is necessarily bound to accept a bare assertion as to the dominant motive of a deponent, unaccompanied by some explanation of the circumstances, at any rate in a case where more than one motive is possible.”
“An affidavit of documents is sworn testimony which stands in a position which is in certain respects unique. The opposite party cannot cross-examine upon it and cannot read a contentious affidavit to contradict it. He is entitled to ask the Court to look at the affidavit and all the documents produced under the affidavit, and from those materials to reach the conclusion that the affidavit does not disclose all that it ought to disclose. In that case he can obtain an order for a further and better affidavit.”
“If from the affidavit itself, or from the documents therein referred to, or from an admission in the pleadings of the party from whom discovery is sought, the Master or judge is of the opinion that the affidavit is insufficient, he ought to make an order for a further affidavit….”
“It has long been settled that a deponent stating grounds on which he claims privilege is not to be met by an opposing affidavit either contradicting him or cross-examining him with a view of showing that what he has stated is untrue. The other party can only look at the affidavit itself. If it is ambiguously or too ingeniously worded, so that its meaning is obscure, he may take the objection that the claim for privilege is not sufficient and may obtain a more precise statement of facts.”
“… on whatever ground the order for a further affidavit is made, whether because of some admission by the deponent or the belief of the opposite party that other documents exist, the oath of the deponent in answer is conclusive; it cannot be contravened by a further contentious affidavit and cannot be the subject of cross-examination.”