All go for Glaxo
Charlie Bond explains why privilege did not prevail for contested email evidence.  EWHC 2747 (Ch), Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd, High Court, 25th October 2018.
 EWHC 2747 (Ch), Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd, High Court, 25th October 2018
- Take care when preparing disclosure lists relating to privileged material and the evidence supporting any claim to privilege
- Be clear about which individuals are responsible for liaising with solicitors to avoid confusion
- Consider the requirements of the different forms of privilege; it cannot simply be assumed that privilege applies
Here, the Claimants (both part of the Glaxo group) are suing the Sandoz Defendants for passing off their generic inhaler as the Claimants’ branded inhaler, for which patent protection has expired. At the case management conference on 25th September 2018, the Claimants challenged the right of the Sandoz Defendants to withhold two documents from disclosure under legal advice privilege and litigation privilege.
Cause for contention
Under Rule 31.19(3) of the Civil Procedure Rules, a party withholding a document from inspection must state in writing that it has the right to do so and the grounds on which it claims that right. The Defendants sought to withhold two internal email documents from inspection. Both originated from Susanne Groeschel-Jofer, an in-house lawyer for the fourth Defendant at the time the emails were sent, and related to the instruction of Bristows to give legal advice. The recipient of both emails was Dr Malaun, who worked for the fourth Defendant as a drugs regulatory affairs manager.
The Sandoz Defendants claimed privilege for two reasons:
- Employees of the Sandoz Group who received the emails were capable of instructing Bristows on behalf of the second Defendant and authorised to receive advice from Bristows on behalf the second Defendant, so their communications with Ms Groeschel-Jofer attracted legal advice privilege.
- Dr Malaun was authorised to request and receive advice where it was relevant to his functions, and it was within the scope of his authority to provide information for the purposes of obtaining legal advice.
The Claimants objected, and Chief Master Marsh drew on SFO v ENRC  EWCA Civ 2006 and In Re RBS Rights Issue Litigation  EWHC 3161 (Ch), before concluding:
- Bristows provided legal advice to the second Defendant; there was no suggestion it was provided to the fourth Defendant, which employed Dr Malaun and Ms Groeschel-Jofer.
- The statement about Dr Malaun’s authority did not say he was authorised to seek legal advice from external lawyers acting for the second Defendant. His provision of information would not make the communication privileged unless he was the client obtaining legal advice.
Notably, the Master stated: “Preparatory work of compiling information by persons with no authority to seek or receive legal advice will never be subject to legal advice privilege.” He concluded that the Sandoz Defendants had not demonstrated an entitlement to legal advice privilege in relation to the emails. The Claimants were therefore entitled to inspect them.
This decision highlights the level of care needed in compiling disclosure lists relating to privileged material and the evidence supporting any claim to privilege. Of particular importance is that fact-gathering, even when performed by an in-house lawyer for the purpose of obtaining legal advice, does not necessarily attract privilege.
Charlie Bond is a Senior Associate at Gowling WLG
Associate, Gowling WLG