Application for disclosure
In a cautionary tale for litigators, the High Court has ordered the disclosure of the privileged notes of a conversation after a witness referred to the conversation in his witness statement.(1)
Scipharm, a pharmaceutical company, and Moorfields, a National Health Service hospital trust, were parties to a pharmaceutical development agreement. Scipharm alleged that Moorfields had breached the terms of the agreement by losing its "good manufacturing practice status". Consequently, Moorfields was unable to enter into a commercial manufacturing agreement. Scipharm alleged that it had incurred significant losses as a result of Moorfields' breach.
During the proceedings, the parties had exchanged witness statements. In his witness statement, Mr Beckers (a witness for Scipharm) referred to a discussion between Scipharm's solicitor and Ms Beveridge (a Moorfields employee). In particular, the statement said the following:
Our solicitor spoke to Margaret Beveridge, who is referred to in paragraph 3 and onwards of the particulars of claim . . . . Moorfields solicitors wrote in their letter dated 5 March 2018 that SciPharm . . . was not prepared to commit to non-refundable reservation and cancellation costs given the uncertainty in timing and success of obtaining market authorisation. Ms Beveridge confirmed to our solicitor that in reality Moorfields did not consider cancellation fees to be appropriate given the size of its manufacturing business. I do not know who gave this incorrect information to Moorfields solicitors in March 2018.
Beckers's witness statement made no reference to written records of the discussions between Beveridge and Scipharm's solicitor, but Moorfields assumed that they existed. Moorfields applied to the High Court under Civil Procedure Rule 31.14 for disclosure and inspection of the "attendance notes or similar documents" arising from Beveridge's discussions with Scipharm's solicitor, which Moorfields argued had been referred or alluded to in Beckers's witness statement.
In response, Scipharm disclosed a statement that it had obtained from Beveridge three years previously, which had not been referred to in Beckers's witness statement. Moorfields argued that the statement was inconsistent with what Beckers had alleged Beveridge had told Scipharm's solicitor. Moorfields further argued that it would be unfair to refuse disclosure of the requested documents because of this inconsistency.
The Court accepted that any note of discussions between Beveridge and Scipharm's solicitor would normally "be plainly a document which was protected by litigation privilege". In order to determine whether to order disclosure nevertheless, the Court had to decide whether:
- the relevant documents had been sufficiently "mentioned" so that a right to inspect them arose under Civil Procedure Rule 31.14;
- there had been an express or implied waiver of privilege sufficient to permit inspection; and
- it would be fair to order disclosure.
Had the attendance notes been mentioned?
Referring to NCA v Abacha,(2) the High Court accepted that the issue depended on whether there had been a "sufficiently direct allusion" to the document in the body of the witness statement. Since there was no evidence as to how the information came to be incorporated into Beckers's witness statement, the Court inferred that it "must have been by reference to an attendance note containing the relevant information". In addition, the Court held that it was "unreal to suppose it was based on memory given the passage of time and the lack of any qualification to the effect that what is said is based on unassisted memory". Accordingly, although Beckers had not referred to any attendance notes, the Court held that there had been sufficient mention of them.
Had privilege in the attendance notes been waived?
The Court noted that the law takes privilege extremely seriously as a matter of policy. The Court considered Magnesium Elektron v Neo Chemicals and Oxides (Europe) Limited,(3) where it was held that the general rule is to ask whether the contents of the document in question had been "deployed" (ie, relied upon) rather than merely referenced.
The Court held that, as Beckers had sought to set out what Beveridge had confirmed the cancellation charges to be, the relevant extract in Beckers's witness statement had clearly been an attempt to rely upon the material, as opposed to a mere reference in passing to the attendance notes' existence.
Would disclosure be fair?
Given that the information included in Beckers's witness statement was inconsistent with the information that Beveridge had previously provided, the Court held that, in the circumstances, it would be unfair to allow Beckers to make the assertions in his witness statement without disclosing the records of what Beveridge had actually said.
As all three issues fell in Moorfields' favour, the Court ordered the disclosure.
This decision serves as a valuable reminder of the risk of waiving privilege when relying upon privileged material in statements of case or witness statements. Litigators should proceed with caution when making direct or indirect reference to privileged material in statements of case or witness statements. Even where there is no direct reference to such material, the court may find that it is clear, as in this case, that the information referred to must have been derived from a privileged document. Litigators must also consider carefully when they are drafting whether they are deploying or relying upon, rather than merely referring to, privileged information.
For further information on this topic please contact Suera Hajzeri or Davina Given at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1) Scipharm SARL v Moorfields Eye Hospital Foundation Trust  EWHC 2079.
(2) NCA v Abacha  EWCA Civ 760,  1 WLR 4375, see paragraph 23.
(3) Magnesium Elektron v Neo Chemicals and Oxides (Europe) Limited  EWHC 2957.