Privilege ruling releases two documents and destroys one

Email: Internal messages not covered by privilege

A party’s claim to legal advice privilege over two internal emails has been rejected by the High Court, which has also ordered a privileged document disclosed by mistake destroyed.

The court heard in Glaxo Wellcome UK and another v Sandoz and others [2018] EWHC 2747 (Ch) that the claimants sued the first four defendants for passing off their generic inhaler product as the claimants’ inhaler, designed to treat chronic obstructive pulmonary disease and severe asthma.

Chief Chancery Master Marsh said this had involved a “very substantial” disclosure exercise, with 406,000 documents reviewed by 50 legally qualified reviewers.

“That process took six months and is said to have cost circa £2m.” Over 75,000 documents were disclosed.

Glaxo Wellcome challenged a claim to legal advice privilege in relation to two internal emails seeking information to provide to London law firm Bristows for the purpose of giving legal advice.

Master Marsh said the evidence provided by the defendants fell “some way short” of discharging the burden on them to demonstrate entitlement to privilege, particularly in failing to specify the company or companies claiming the privilege and to “identify with clarity” members of staff authorised to request and receive legal advice.

The master ruled that the claimants were entitled to inspect the two emails.

He was also not happy with the witness statement from the defendants’ solicitor, Marcus Collins of White & Case.

He pointed out that a disclosure statement must be signed by the party concerned, not their lawyers.

“In general, it seems to me the court should insist on the response to an application under CPR 31.19(5) being given by the party concerned to match what is required in the disclosure statement. But since no point was taken in this case, and it was not raised during the hearing, it can be put on one side apart from two observations.

“First, if the solicitor provides the evidence on instructions, it is essential that the requirements of Practice Direction 32 are strictly complied with. It is very unsatisfactory that in a witness statement dealing with an issue of such importance the source of Mr Collins’ information is not stated.

“Secondly, it is essential that the party claiming privilege is clear about which party, or parties, are claiming privilege.

“If, as here, it appears that privilege is claimed by each of the first to fourth defendants, their respective entitlement needs to be explained. That has not been done.”

On the mistaken disclosure of a document covered by litigation privilege, Master Marsh said “even a solicitor with limited experience” would question why the document, an account of historic events with emails attached “as evidence”, was disclosed by the defendants.

“Having seen the document, my immediate impression is that its contents are part of an evidence-gathering exercise and therefore likely to be covered by litigation privilege because litigation was either in contemplation or had been commenced.

“It is an account of historic events providing an explanation for a decision-making process that goes to the heart of this case. The headings point directly to the subject matter of the text.

“It is quite clearly not a contemporaneous document produced during the process it describes. And it refers to emails to be attached ‘as evidence’. It is just the sort of document that would attract the attention of a solicitor who received it by reason of its content.”

Master Marsh described as “unimpressive” the argument that the defendants might have chosen to disclose the document because it supported their case.

He said that a reasonable solicitor, put on notice that a document might be privileged, “would and should” have checked the metadata, which was “high level and easily accessible”.

The master went on: “Once the metadata is revealed, the date of the document, 2015, and its description as a ‘statement’ would have spoken of privilege in clear terms.

“I consider it should have been obvious from the form and content of the document that it was privileged and had been disclosed by mistake. Even if that is wrong, it would have been obvious once the metadata was examined.”

He said the claimants should have notified the defendants and agreed a process by which the document was returned or deleted.

“That moment is now long past. The court has a broad discretion about what steps, if any, should be ordered. I consider it would not be right in this case to permit the mistake to lie uncorrected. The extent to which the document has been relied on is limited and the claim is some way from trial.”

Master Marsh proposed an order requiring deletion of all copies of the statement and redaction of a paragraph in a witness statement relating to it.

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