Privilege and Witness Statements

The extent to which a statement of case or witness statement makes reference to documents, thereby giving rise to a right to inspection by the opponent, is one that often arises in practice.

The issue is particularly acute when the document in question is protected by legal professional privilege and the party would otherwise be entitled to withhold it from production. The recent decision of the High Court in Scipharm Sarl v Moorfields Eye Hospital NHS Foundation Trust adds to the jurisprudence in this area, providing guidance on what constitutes sufficient reference to a document to trigger the right to inspection and how the court may exercise its discretion to order disclosure of privileged material.

Background

The claimant and the defendant entered into a pharmaceutical development agreement (“the agreement”). The claimant alleged that the defendant had breached the terms of the agreement by losing its good manufacturing practice status. This meant the defendant was unable to enter into a commercial manufacturing agreement with the claimant in relation to a particular pharmaceutical product. The claimant alleged that it had incurred significant losses as a result of the defendant’s breach.

One of the claimant’s witnesses, Mr Becker, had referred in his witness statement to a conversation between the claimant’s solicitor and Ms Beveridge, one of the defendant’s employees at the time who was involved in negotiations with the claimant concerning the development of the pharmaceutical product. The most significant statement appeared at paragraph 9 of the witness statement and read as follows:

The defendant submitted that there was specific allusion to attendance notes or similar documents arising from the claimant’s solicitors’ discussions with Ms Beveridge, and made an application under CPR 31.14 for disclosure and inspection of these documents. The defendant argued that it would be unfair to refuse disclosure as the information deployed in the witness statement was not consistent with a witness statement provided by Ms Beveridge some three years previously.

The questions for the court to determine were twofold:

• Had the defendant identified as a threshold issue that the relevant documents had been “mentioned” in the witness statement relied upon so as to engage CPR 31.14 and (subject to the court’s discretion) a right to inspect the documents (the “threshold issue”)?
• If there was sufficient mention of the documents, should the court use its discretion to order inspection where the documents in question were by their nature privileged? The question therefore came to this: if there had been a mention of the relevant documents, had there been an express or implied waiver of privilege sufficient to permit inspection to take place (the “waiver issue”).

The court granted the application for disclosure and inspection under CPR 31.14.

In relation to the threshold issue, the court held that whilst there was no evidence as to the basis on which the information relating to Ms Beveridge came to be included in the witness statement, in the absence of an express explanation the inference to be drawn was that it must have been by reference to an attendance note containing the relevant information. It was unreal to suppose that the information had come from Mr Becker’s memory.