Does the decision in Bilta represent a more generous interpretation of litigation privilege? Richard Foss & Hannah Fitzwilliam report
Bilta (UK) Ltd & Ors v Royal Bank of Scotland Plc & Anor [2017] EWHC 3535 (Ch) involved a claim against RBS for alleged fraudulent trading in connection with VAT fraud.
In March 2012, HMRC wrote to RBS stating that they had sufficient grounds to deny RBS’s VAT reclaim in relation to certain carbon credit trades on the basis that RBS ‘knew or ought to have known’ that the trades were connected with fraud. RBS appointed solicitors to conduct an investigation into the circumstances surrounding the trades. This resulted in a report in response to HMRC’s letter that argued, amongst other things, that RBS did not know that the trades were connected with fraud.
The documents created in that investigation included transcripts of 29 interviews with RBS key employees and ex-employees. The claimants sought disclosure of those documents pursuant to CPR Pt 31. RBS resisted disclosure on the basis that the documents were subject to litigation privilege.
