Accident Investigation Reports – Privilege From Disclosure

The recent decision of the Queen's Bench Division (22 July 08) in the case of West London Pipeline and Storage Ltd and another v Total UK Ltd and others confirmed the position that a post-incident report prepared in contemplation of litigation, and in the defence of any forthcoming proceedings, will attract privilege from disclosure – if this is its primary purpose.

In this case, the claimant sought disclosure of the post-incident report following an explosion at an oil storage terminal, claiming that privilege would not attract since the operator of the terminal, for the purposes of the Control of Major Accident Hazard Regulations 1999, as amended (COMAH) had a duty to report imposed upon them by the Regulations, and therefore any report prepared was, primarily, in compliance with this regulatory duty. The defendants claimed that this was not the case and that the dominant purpose behind the