Sayers v Smithkline Beecham plc – disclosure of expert reports

[2007] EWHC 1346 (QB)

The court ordered the disclosure to a non-party of expert reports filed in an action before the English courts for use in similar proceedings in the US. The disclosure was ordered under CPR 5.4C(2) which governs access by non-parties to documents other than statements of case. The expert reports in question contained analysis of biopsy specimens relevant to the MMR/MR litigation in the UK and had been obtained by the defendant manufacturers of the vaccine, SmithKline Beecham. They had not been adduced in evidence since the UK litigation has all but ceased following the withdrawal of public funding for most of the claims. The US Secretary of Health applied for copies of the reports for use in the US proceedings concerning the same vaccines.

Whilst SmithKline Beecham did not oppose disclosure of their reports, the claimants did, alleging that the reports contained confidential information and that the disclosure sought could damage their prospects of bringing claims in the future. Keith J concluded that special circumstances justified disclosure in this case, given the public interest in the US litigation and the particular circumstances concerning the interrelationship between the expert evidence in the US and the UK litigation. The claimants’ privacy concerns could also be met by anonymising the data in the reports. The court agreed with the parties that the principles which apply under CPR 5.4C(2) should be the same as those applying under CPR 31.22 where the application relates to reports or statements which draw on or incorporate disclosed documents. The applicant should not be in a better position making an application under CPR 5.4C(2) than he would have been under CPR 31.22.

Comment: the new powers to permit a non-party to obtain copies of documents on the court file have caused consternation since their introduction in October 2006. However, since the court applied the rules for disclosure to a non-party under CPR 31.22, no guidance was given as to the application of CPR 5.4C where it does not overlap with the existing disclosure rules. The court will always be involved in an application by a non-party for disclosure of this kind and the parties to the original litigation will be able to make representations as to why disclosure should not be ordered.

More worrying is the ability of a non-party to obtain a copy of a statement of case on the court file without permission. One particular area of uncertainty concerns statements of case originally filed before 2 October 2006 which are then re-filed with amendments after that date. Although there was some suggestion initially from court staff that these would be treated as pre-October statements of case and therefore not disclosable without permission, there is no official guidance on this point. You should therefore assume that any amended statement of case filed after 2 October 2006 will be released under CPR 5.4(C).