Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Ors [2018] EWHC 2747 (Ch)

[2018] EWHC 2747 (Ch)Case No HC-2015-005005IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTSOF ENGLAND AND WALESINTELLECTUAL PROPERTY LISTVenue Rolls Building, Fetter LaneLondon EC4A 1NLDate 25/10/2018
Before
CHIEF MASTER MARSH
Between
(1) Glaxo Wellcome UK Limited (t/a Allen & Hanburys)Claimants(2) Glaxo Group LimitedClaimant(1) Sandoz LimitedDefendants(2) Sandoz International GMBHDefendant(3) Aeropharm GMBHDefendant(4) Hexal AGDefendant(5) Sandoz AGDefendant(6) Vectura Group plcDefendant(7) Vectura Delivery Devices LimitedDefendant
Tom Hickman (instructed by Stephenson Harwood LLP) for ClaimantsMartin Howe QC and Iona Berkeley (instructed by White & Case LLP) for 1 st to 5 th DefendantsHearing Hearing dates: 25 September 2018
Judgment ApprovedChief Master Marsh:
[1]Submissions were made about two issues relating to privilege at a case management conference on 25 September 2018. The first issue is whether the 1st to 4th defendants (“the Sandoz Defendants”) are entitled to withhold inspection of two documents they claim are subject to legal advice privilege. Their claim to privilege has been challenged by the claimants under CPR 31.19(5). The second issue concerns a document which the Sandoz Defendants say is subject to litigation privilege and was disclosed by mistake. They seek relief under CPR 31.19(20) preventing use of the document. Before dealing with those issues, I will briefly set out the relevant background.[2]The claimants sue the Sandoz Defendants for passing off their generic inhaler product as the claimants’ (now out of patent) “Seretide Accuhaler” inhaler. The Accuhaler product has achieved worldwide sales of approximately £62 billion since its launch in 1999. The Sandoz Defendants’ product, named “AirFluSal Forspiro”, was launched in the United Kingdom in 2015 and elsewhere internationally variously from 2014. Both products are prescription only and are designed to deliver a combination of drugs for the treatment of chronic obstructive pulmonary disease (COPD) and severe asthma. They are marketed and sold as boxed inhalers. The get up for each product can be seen in pictorial form in paragraph 3 of the judgement of Mr Rosen QC, sitting as a deputy High Court judge, dated 3 July 2018.[3]The claimants allege that the Sandoz Defendants chose AirFluSal Forspiro’s get up with the deliberate aim of deceiving or creating confusion in the mind of the relevant public. The Sandoz Defendants accept that the question of whether the public are deceptively confused may take into account the Sandoz Defendants’ intentions and that documents relating to the design history of the AirFluSal Forspiro must be disclosed in a date range going back to 2003. The disclosure exercise undertaken as between the claimants and the Sandoz Defendants has been a very substantial one. Keyword searches were applied to documents held by 40 custodians. 406,300 documents were reviewed by 50 legally qualified reviewers. That process took six months and is said to have cost circa £2 million. 75,326 documents have been disclosed to the claimants.[4]The trial of the claim was originally due to take place in October 2018. However, at a hearing before Mr Rosen QC on 3 July 2018, an order was made vacating the trial date and a new trial date has now been fixed for July 2019. At the same hearing, the fifth, sixth and seventh defendants were joined as parties. (For the avoidance of doubt, when using the shorthand the Sandoz Defendants I am not including the 5th Defendant). Separate disclosure exercises are now taking place involving the fifth defendant and the sixth and seventh defendants (“the Vectura Defendants”). They are unrelated to the issues between the claimants and the Sandoz Defendants. Issue 1 - Legal Advice Privilege[5]The claimants challenged the claim to privilege made by the Sandoz Defendants covering the date range 1 November 2004 to 1 January 2007 which was a period during which design decisions were made about AirFluSal Forspiro. Under CPR 31.19(3) a party claiming a right to withhold inspection must state in writing that it has the right and “… the grounds on which [it] claims that right or duty.” The claim to legal advice privilege was made in bare terms without identifying the documents individually or by a descriptive class. The claimants applied to the court for a decision about whether the claim to privilege should be upheld under CPR 31.19(5). It is common ground that the onus of proving an entitlement to privilege is on the party claiming it – see West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) at [86(1)].[6]The issue was raised in the claimants’ application notice dated 7 June 2018 and in paragraphs 163 to 171 of the 7th witness statement of Eifion Morris of Stephenson Harwood LLP. The application was issued just a few days before a hearing listed to take place on 12 June 2018. Unsurprisingly, given the short notice of the application, no response was provided to it by the time the application came on for hearing before me on 12 June 2018 and, in any event, there would not have been time to deal with it. It was adjourned to be dealt with at the hearing before the Deputy Judge on 28 and 29 June 2018. On that occasion he ordered the Sandoz Defendants to file (and serve) a witness statement providing their response by 4pm on 14 September 2018. This provided the Sandoz Defendants an ample, arguably a generous, period of time in which to consider the issue and formulate their response.[7]It is uncontroversial that where a challenge is made to a generalised claim to privilege, it is incumbent on the respondent to the application either to provide an adequate explanation of the claim to privilege, or risk being made subject to an order requiring inspection to be provided. On 14 September 2018 Mr Marcus Collins of White & Case’s eighth witness statement was served along with three lever files of additional disclosure. Exhibit MLC 35 to the witness statement lists 24 documents (documents, letters and emails) over which legal advice privilege is claimed. In most cases the claim to privilege is clearly made out and the letters and emails listed describe both the subject matter of the communication that is said to be privileged and the parties to it. The claimants only challenge the claim in respect of two documents, those numbered 11 and 14: “11. Email from Susanne Groeschel-Jofer internal to the Sandoz group seeking information to provide to Bristows for the purposes of Bristows giving legal advice. … 14. Email from Susanne Groeschel-Jofer internal to the Sandoz group seeking information to provide to Bristows for the purposes of them giving legal advice, along with internal Sandoz group email providing the information requested.” [Bristows LLP were providing external legal advice to the Sandoz Defendants during this period. They are now acting for the Vectura Defendants.][8]It is notable that, unlike the other emails in the list, the person with whom Ms Gröeschel was communicating is not named in items 11 and 14. The emails are merely described as being “internal to the Sandoz group”. They contrast, for example, with item 13 (about which no challenge to the claim to privilege is made) that is interposed between the two entries I am concerned with:
“Email from Michael Malaun to Susanne Groeschel-Jofer requesting legal advice, along with a note of legal advice given by her.”
In that example, both parties to the communication are named.[9]Mr Collins’ statement helpfully provides in paragraph 5 details of the lawyers who are named in the exhibit and provides their qualifications. Ms Gröschel is a Rechtsänwaltin and at the relevant time was employed by the fourth defendant. Since 2010 she has been employed by the second defendant. Paragraph 6 of the witness statement is material to the application: “6. Having inquired of the Sandoz defendants, I have been informed that, during the period of the Date Range, members of staff employed within the Sandoz group, such as those involved in the communications in which privilege is claimed, were authorised to request and receive legal advice where relevant to the performance of their job functions.” [my emphasis][10]Mr Hickman, who appeared for the claimants pointed out that paragraph 6 of the witness statement is inconsistent with paragraph 2 where Mr Collins states that the facts in the statement are based on his own knowledge or are ascertainable from the documents held by his firm or from information provided by the Sandoz Defendants’ electronic disclosure providers. Furthermore, the form of the statement can be criticised because to say merely “I am informed that …” does not comply with the requirements set out in paragraph 18.2 of Practice Direction 32 pursuant to which the maker of a statement must do two things. First, the witness statement must distinguish between “which of the statements in it are made from the witnesses own knowledge and which are matters of information or belief”; secondly, it must provide “the source for any matters of information or belief”. I will consider later whether these defects are material. However, it is hard to overstate the care that is needed when making a claim to privilege because the other party will normally have no choice other than on rely on what it is told.[11]Paragraphs 83 to 90 of the twelfth witness statement of Mr Eifion Morris provide the claimants’ response. He suggests that the claim to privilege in respect of items 11 and 14 is “vague and unsupported” and the evidence does not support it. His understanding of the claim to privilege made by the Sandoz Defendants is put in the following way:
“The basis for this claim of privilege is that employees of the Sandoz Group, to whom Ms Susanne Groeschel-Jofer sent emails, in different Sandoz Group companies, were all capable of instructing the external law firm Bristows on behalf of the second Defendant and were authorised to receive advice from Bristows on behalf the second Defendant, so that their communications with Ms Groeschel-Jofer attract legal advice privilege.”
[12]Mr Morris went on to suggest that there were further documents that had not been disclosed and referred to a document he exhibits as EWM 207 dated 20 July 2015 setting out Ms Kirsi Norvasuo-Huber’s recollection that a detailed assessment had been made in 2006/2007 by the Sandoz Defendants concerning the colour purple used for the AirFluSal product and the name “Viani”. The reference to Exhibit EWM 207 has prompted the second issue before me because it is said the document is privileged and was disclosed accidentally. I will consider it in more detail when dealing with that issue.[13]Mr Morris’ analysis of the claim to privilege prompted Mr Collins to serve a witness statement dated 21 September 2018. Again, he says the facts in his statement are based on his own knowledge or are ascertainable from documents and papers and information provided by the Sandoz Defendants’ electronic disclosure providers. He says:
“5. … I do not agree that the description of these documents given in the Schedule to my Eighth Witness Statement at exhibit MLC 35 is inadequate or that it does not fully justify the claim to privilege. A request by a legal adviser for information for the purposes of providing legal advice to the client necessarily discloses the substance of the matters on which legal advice is being sought, as does a response by the client providing information sought for that purpose. I do not understand why Mr Morris in his paragraph 85 suggests that it is relevant to the claim for privilege in relation to the documents at items 11 and 14 whether the person with whom Susanne Groeschel communicated was or were authorised to receive legal advice, since there is no need for a person to be authorised to receive legal advice in order to be able to respond to a request for information which assists a lawyer in providing legal advice. 6. But in any event, I can confirm that item 11 was an email from Susanne Groeschel to Michael Malaun (at the time, a drugs regulatory affairs manager at the Fourth Defendant) and item 14 was an email from Susanne Groeschel from Dr Malaun responding to item 11. Susanne Groeschel was at the time of these documents (and still is) a German Rechsanwältin, as discussed in paragraph 5.2 of my Eighth Witness Statement. Dr Malaun was authorised to request and receive legal advice where relevant to the performance of his job functions. It was also within the scope of his authority to provide information for the purposes of obtaining legal advice. The claim to privilege is further maintained because each of the items evidence the nature of the legal advice sought. The Sandoz Defendants therefore maintain their claim for privilege in those documents.”
[14]It is of note that it was only revealed in the second explanation of the claim to privilege that the recipient of the email listed at 11 and the sender of the email listed at 14 was Dr Malaun. This is odd because, as set out above, Dr Malaun is named at item 13 as the person who sought legal advice from Ms Groeschel, as an in-house legal adviser. The claim to privilege at item 13, however, contrasts with items 11 and 14 where advice was being sought from Bristows as external legal advisers. Legal advice privilege – the law[15]Although there has been controversy about the scope of legal advice privilege as it relates to corporate bodies arising from the decision of the Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474, the position has now been settled by the recent decision in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (“ENRC”) [2018] EWCA Civ 2006. The Court of Appeal overturned the first instance decision of Andrew J on the question of whether litigation privilege applied on the facts of the case, but affirmed her statement of the law as it relates to legal advice privilege. She had agreed with the approach adopted by Hildyard J in Re RBS Rights Issue Litigation.[16]On the appeal, ENRC submitted that Andrews J had misinterpreted Three Rivers (No 5) and ought not to have held that communications with a client for the purposes of legal advice privilege were only those with an employee who was specifically tasked to seek and obtain legal advice. The Court of Appeal’s view of the law can been seem from two passages in the judgment of the court:
“81. We can fully accept that the Court of Appeal could have decided Three Rivers (No 5) on the simple basis that Freshfields’ client was the BIU (not the Bank), and the documents had been prepared by the Bank (not the BIU), so that the position of the particular Bank employee who had prepared them was irrelevant to the question of legal advice privilege. We do not, however, think that, fairly read, that was the Court of Appeal’s reasoning. As we have explained, it seems to us that Longmore LJ reasoned that, because agents and employees, on authority, stood in the same position in relation to legal professional privilege, once it was established that only communications between the lawyer and the client, and not between the lawyer and an agent for the client, could attract legal advice privilege, communications between a lawyer and an employee of the client (other than employees specifically tasked with seeking and receiving legal advice) could also not be privileged. As we have said, we are not sure that it is necessary for us to determine whether this reasoning was the ratio decidendi, but if that did have to be decided, we would hold that it was. … 123. … As will be apparent from what we have already said, we would have determined that Three Rivers (No 5) decided that communications between an employee of a corporation and the corporation’s lawyers could not attract legal advice privilege unless that employee was tasked with seeking and receiving such advice on behalf of the client, as the BIU was in Three Rivers (No 5).”
[17]The Court of Appeal cited several passages from the judgment of Andrews J with apparent approval. At paragraph 73 Andrews J refers to what she describes as the narrower interpretation of legal advice privilege, one that is consistent with Three Rivers (No 5), and describes it on the basis that: “… the employee must be authorised to seek/obtain the legal advice that is the reason for the communication …”. [my emphasis] Mr Hickman relies on the words I have emphasised as pointing against general authority to obtain legal advice being sufficient.[18]In one of the passages cited by the Court of Appeal, Andrews J derived support from an observation of Hildyard J in In Re RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) at [64]:
“… the fact that an employee may be authorised to communicate with the corporation’s lawyer does not constitute that employee the client or a recognised emanation of the client.”
[19]Mr Howe, who appeared for the Sandoz Defendants, referred me the following passage in the judgment of Andrews J (which was not cited by the Court of Appeal) and submitted it supports his clients’ position:
“82. Hildyard J accepted the submission that, in order to warrant protection, where the client is a corporation, the communication with the lawyer must be to or from a person who is authorised to seek and receive legal advice on behalf of the corporation, and the communication must be for the purposes of, or in the course of that person giving or receiving legal advice. Such a communication is to be distinguished from the preparatory work of compiling information undertaken by persons with no authority to seek or receive legal advice, for the purposes of enabling the corporate client to seek and receive such advice. That is so whether the preparatory work is conducted by the client or by the lawyer.”
[20]It seems to me that Hildyard J was distinguishing circumstances in which legal advice privilege will apply and where it will not apply. Preparatory work of compiling information by persons with no authority to seek or receive legal advice will never be subject to legal advice privilege. I do not see how this passage advances the argument.[21]It is helpful, however, to have regard to paragraph [92] in the judgment of Andrews J where she considers whether a company’s in-house lawyers or general counsel would have the necessary authority, by virtue of their office, to seek and obtain legal advice from external lawyers on behalf of the company. She remarks; “Whether they, or any other individual employee or group of employees had such authority in a given case, is a question of fact to be determined on the evidence.”[22]The correct approach to an application made under CPR 31.19(5) is set out at paragraph [86] of the judgment of Beatson J in West London Pipeline, to which I have already made reference concerning the burden of proof. It is unnecessary to cite the relevant passage in full. At paragraph [86(3)] of his judgment, Beatson J emphasises the difficulty in going behind a witness statement made at an interlocutory stage. He goes on to say (leaving out the citations): “The [witness statement] is conclusive unless it is reasonably certain from:(a) the statements of the party making it that he has erroneously represented or misconceived the character of the documents in respect of which privilege is claimed:(b) the evidence of the person who or entity which directed the creation of the communication or documents over which privilege is claimed that the affidavit is incorrect:(c) the other evidence before the court that the affidavit is incorrect or incomplete on material points. (a) the statements of the party making it that he has erroneously represented or misconceived the character of the documents in respect of which privilege is claimed: (b) the evidence of the person who or entity which directed the creation of the communication or documents over which privilege is claimed that the affidavit is incorrect: (c) the other evidence before the court that the affidavit is incorrect or incomplete on material points.[23]One obvious addition to that list is where it is evident the maker of the statement has misunderstood, or misapplied, the relevant legal test. Discussion on Issue 1[24]Although it is far from being determinative of the issue, Mr Hickman is right to be critical of Mr Collins’ eight witness statement. The Sandoz Defendants were provided with an ample period in which to consider their claim to legal advice privilege and to justify it. No point was taken about evidence relating to the claim to privilege being provided by Mr Collins, as opposed to a representative from the company claiming privilege. I can see that if more than one party is claiming privilege, it is convenient for the witness statement to be provided by the solicitor who acts for all the relevant parties. It is of note, however, that a disclosure statement must be signed by the party concerned – see paragraph 4 of Practice Direction 31A. It is not permissible for it to be signed by lawyers acting on behalf of that party. 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.[25]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.[26]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.[27]My conclusions on this issue can be stated shortly. I consider that the evidence provided in the two statements produced by Mr Collins falls some way short of discharging the burden on the Sandoz Defendants. The information in his eighth statement as it relates to items 11 and 14 is inadequate. Given the lengthy period that had been provided for the evidence to be provided it might have been expected that the statement would have been more precise. It can reasonably be criticised because of:(1) The conflict between paragraphs 2 and 6.(2) The inadequate statement “I am informed that” in paragraph 6. The source of the instructions is not identified.(3) The failure in items 11 and 14 of exhibit MLC 35 to identify the person or persons to whom Ms Gröeschel’s email was sent and the person or person who replied. It is hard to avoid the conclusion that the description of the email as being “internal to the Sandoz group” deliberately avoided identifying Dr Malaun.(4) Its failure to specify which company or companies claimed the privilege.(5) The failure to identify with any clarity in paragraph 6 the members of staff who were authorised to request and receive legal advice. To say that members of staff “… such as those involved in the communications in which privilege is claimed…” were authorised does not identify the class of person concerned. It is merely illustrative of persons who are included, but no more than that.[28]The ninth statement made by Mr Collins does not assist. Paragraph 5 contains statements of the law relating to privilege which are ill-founded. First, Mr Collins says that a request by a legal adviser “to the client” necessarily discloses the substance of the matters on which legal advice is sought, as does a response “by the client” providing information sought for that purpose. It does not grapple with the underlying question: who is the client for these purposes? Secondly, he says it is not necessary for legal advice privilege to exist “… for a person to be authorised to receive legal advice in order to be able to respond to a request for information which assists a lawyer in providing legal advice.” That misstates the law, as I have indicated.[29]Paragraph 6 reveals that the emails in question were not to and from the Sandoz group but Dr Malaun who was a “drugs regulatory affairs manager” at the fourth defendant, the same company that employed Ms Gröschel. He goes on to make a claim for privilege on behalf of the first to fourth defendants without explaining how the privilege could belong to each of them. Furthermore, he makes two general statements. First, that Dr Malaun was authorised to request and receive advice where it was relevant to his functions and secondly, it was within the scope of his authority to provide information for the purposes of obtaining legal advice. Taking them in turn:(1) It is apparent from the items in MLC 35 that relate to obtaining external legal advice from Bristows, and paragraph 5.1 of Mr Collins’ eighth statement, that Mr Cordery of Bristows provided legal advice to the second defendant. There is no suggestion that he provided advice to, for example, the fourth defendant, which Dr Malaun and Ms Gröschel worked for.(2) The statement about Dr Malaun’s authority does not say he was authorised to seek legal advice from external lawyers acting for the second defendant. It seems more likely that Ms Grösechel may have been given the task of obtaining legal advice and she was obtaining information for that purpose. In that event, her exercise in gathering information from Dr Malaun would not be subject to legal advice privilege. The provision of information by him would not make the communication privileged unless he was the client for the purposes of him obtaining legal advice.[30]The Sandoz Defendants have not discharged the burden on them (or one or more of them) of demonstrating an entitlement to legal advice privilege relating to items 11 and 14. The claimants are entitled to inspect the two emails. Issue 2 – A privileged document disclosed by mistake[31]This issue arises out of paragraphs 86 to 90 of Mr Morris’ twelfth statement dated 19 September 2018. In support of the claimant’s application he suggested there may be other documents that had not been disclosed and referred to the document with disclosure reference SDZ0031275 which he exhibits as EWM 207 (“the Document”). The Document was created by Kirsi Norvasuo-Huber on 20 July 2015 and sets out her recollections in relation to the decision making process for the selection of purple for AirFluSal Forspiro. During the course of the hearing I was asked to read the Document. Without referring to the content of the Document in detail it is helpful to note the following:(1) It runs to approximately 1½ pages of A4.(2) It has no descriptive heading or signature at the end and it is not directed to anyone.(3) It has three sections under three different headings. The headings are: “Airflusal in colour purple & decision making process Justification for the colour purple in the generic version of Viani Justification for the colour purple in the generic version of Viani Timelines and assessments made regarding the colour purple according to my knowledge(4) It is written in a narrative form in the first person explaining the writer’s knowledge of the subject matter that is indicated in the headings.(5) It refers to advice having been obtained.(6) It says: “Respective emails are attached as evidence”.

Justification for the colour purple in the generic version of Viani

[32]Mr Morris describes the Document as appearing to be a draft email because attachments are referred to and he goes on to say that that no such email had been found and sets out the following extract from the document in his email. “A detailed assessment was made in 2006/2007 by IP and Trade Marks. Both departments confirmed, that there was no valid protection for the “colour purple and Viani” and recommended to us the proposed colour tone in the production (see above mentioned emails) …”.[33]This led to the Sandoz Defendants giving notice in Mr Collins’ ninth statement that the Document was a privileged document that had been disclosed inadvertently and seeking an order for all copies in the hands of the claimant to be destroyed. Nothing turns on the absence of an application notice. The issue arose shortly before the hearing and it was plainly right that it was dealt with on that occasion.[34]The principles that are applicable are not in doubt and both sides rely on the summary provided by the Court of Appeal in Al Fayed v The Commissioner of Police for the Metropolis [2001] EWCA Civ 780 at [16]. For present purposes there are three necessary elements the Sandoz Defendants must establish if their application is to succeed:(1) The Document is privileged. This is accepted by the Claimants.(2) The Document was provided for inspection by mistake.(3) The mistake either was obvious so that the solicitor reviewing the Document appreciated that a mistake had been made before making use of it, or it should have been obvious to the solicitor that a mistake had been made.[35]Mr Hickman referred to the judgment of Moore-Bick LJ in Rawlinson & Hunter Trustees SA v Director of the Serious Fraud Office (No 2) [2015] 1 WLR 797 at [15] where attention is drawn to the danger of conflating the first two elements of the test, namely whether the document is privileged and whether, if privileged, it had been disclosed by mistake. Mr Hickman further submitted that the test of obviousness sets the bar high.[36]Mr Hickman also contrasted two different examples of mistake. In Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd [2018] 4 WLR 6 at [35] to [38] Jackson LJ explained how the disclosure exercise was undertaken in that case with an initial sift by trainees and junior lawyers with documents about which they were unsure referred to a more senior fee earner. The document in question was not put in the notional pile for further review and was disclosed as a consequence of a mistake at the initial sift stage. Whether it was privileged was never considered by the reviewing team.[37]By contrast, in MMI Research Ltd v Cellexion [2007] EWHC 2456 (Ch), the claimant provided the defendants with a copy of a document that was thought to be simply a translation of document in German headed ‘Klage’. The latter document provided the grounds by which the claimant put forward in Germany a case for the annulment of a patent. It later transpired that the former document was a draft case for annulment that had never been filed before the German Federal Patent Court. Importantly, the differences between the two documents were not readily apparent.[38]Mr Hickman submits that the circumstances in this case are closer to MMI Research than to Atlantisrealm and the court should dismiss the application on the basis that the Sandoz Defendants are unable to satisfy the court on the third limb of the test even if the court is satisfied that a mistake was made.[39]There is no automatic right to relief if the disclosing party establishes the three elements I have summarised. The grant of relief is discretionary and the Court of Appeal in Al-Fayed emphasised that there are no rigid rules. Even if the applicant establishes that the reviewing solicitor appreciates that a mistake has been made, or ought to have done, “… there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend on the circumstances.”[40]Evidence in support of the application is provided in Mr Collins’ Ninth statement. He says the document was created by Kirsi Norvasuo-Huber in 2015 as material for a possible witness statement in related proceedings in Ireland. He says:
“Document SDZ0031275 is a duplicate of an attachment to an email relating to the Irish litigation and that covering email and its attachments were duly identified in the Defendants’ review of disclosure as covered by litigation privilege and have not been provided for inspection. The inclusion of the version at SDZ0031275 was thus in error, it would appear, because it was reviewed in isolation from a covering email.”
[41]He makes a similar point later in the same statement where he says:
“9. I have investigated why the document had been disclosed instead of being marked as privileged. The version of the document at SDZ0031275 is a standalone document and does not have any family members. It was therefore reviewed out of context without a covering email which would have made its purpose more immediately apparent.”
[42]He goes on to point to the size of the disclosure exercise. Over 400,000 documents were reviewed within tight time constraints. That mistakes will occur is hardly surprising. The other side of the disclosure coin is that more than 74,000 documents have been disclosed to the claimants.[43]Importantly, Mr Collins draws attention to the primary document name in the Sandoz Defendants’ metadata, which was provided to the claimants, namely ‘2015-07-20 Statement Norvasuo-Huber’. He says that this description clearly flagged the type of document that had been provided for inspection and the description ‘statement’ would have made it obvious that the document was covered by litigation privilege.[44]Mr Morris provided his Fourteenth witness statement shortly before the hearing. He disputes that it was or should have been obvious that the document had been provided for inspection in error. He says (I paraphrase) he(a) carefully reviewed the document after it was brought to his attention by the review team(b) considered whether it might have been disclosed in error and(c) it appeared to him that the document had been deliberately provided to the claimants as a document on which Sandoz intended to rely in support of its case. He goes on to make nine additional points some of which are obvious (such as that he expected the Sandoz Defendants to carefully review documents for privilege). Mr Morris says: (1) Documents describing how the colour purple was chosen are sparse making it “inconceivable” that this document would not have been drawn to the attention of senior members of the Sandoz Defendants’ review team. (2) He was unaware that privilege had been claimed over a duplicate version. (3) It was not clear to him that the document would necessarily attract litigation privilege. (4) He refers to the description of the document’s metadata as a ‘statement’ but says “… this makes it all the more unlikely that the disclosure of this document was unintended and unnoticed.” (5) He says both that the document is helpful to the case put forward by the Sandoz Defendants which made it likely that giving inspection was intentional and that the document raises issues about the accuracy of Ms Norvasuo-Huber’s recollection. (6) He refers to other documents of a similar nature which have been provided for inspection over which privilege has not been claimed.[45]The evidence from Mr Morris is important because it provides his account of reviewing the document and his explanation for concluding that it had not been provided for inspection by mistake or, at least, it was not obvious that a mistake had been made. But, of course, the test is both subjective and objective. The court must consider first whether Mr Morris realised the Document was privileged. That is an issue of fact. The alternative test is only relevant if the court is satisfied that Mr Morris did not come to that conclusion.[46]There is one aspect of Mr Morris’ evidence that is unsatisfactory, albeit I have very much in mind that his Fourteenth witness statement was prepared in some haste for the hearing in response to Mr Collins’ Ninth statement dated 21 September 2018. Mr Morris refers to the description of the document as a ‘statement’ in its metadata but does not say whether he or his staff checked the metadata. Mr Hickman offered to fill this evidential gap on instructions during the hearing with a further witness statement from Mr Morris to follow. I declined to admit further evidence dealing with this point. That is because there is no basis for doubting Mr Morris’ evidence about his understanding of the nature of the Document, even though the court might express surprise about the view he came to. The issue for the court in this case is whether, looked at objectively, it would have been obvious to a reasonable solicitor in his position that a mistake had been made.[47]Mr Collins says that the document is a duplicate of a document attached to an email relating to the litigation over the same subject matter in Ireland over which a claim to privilege was made. He says the mistake occurred because the duplicate document was reviewed in isolation. On balance, I consider that the Sandoz Defendants have provided sufficient evidence to discharge the burden on them of showing that a mistake was made and it was not their intention to give inspection of the document. I have in mind in particular the size of the disclosure exercise that was undertaken and the near inevitability that some errors would occur and the fact that a claim to privilege was made over another version of the document.[48]The more difficult issue concerns whether it would be obvious to a reasonable solicitor that a mistake has been made. 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. Even a solicitor with limited experience would immediately question why it had been provided for inspection.[49]Mr Morris’ suggestion that the Sandoz Defendants might have chosen to disclose the document because it supports their case is unimpressive. It is one thing to provide contemporaneous documents that relate directly to an important issue, but quite another to provide a person’s explanation produced some years later about those events. The content of the document has little or no evidential value for the Sandoz Defendants, unless that content is included in a witness statement that is provided on exchange. It is difficult to imagine why the Sandoz Defendants would want to provide inspection of a document that is of little help to them on a voluntary basis.[50]It is at this point the metadata becomes important. It seems to me that the description of a document that is provided (whether in the metadata or in a more direct form) is of significance. Furthermore, a reasonable solicitor would, and should, when considering the Document, having been put on notice that it might be privileged, have undertaken a check of the metadata. The metadata in question is high level and easily accessible. One the metadata is revealed, the date of the document, 2015, and its description as a ‘statement’ would have spoken of privilege in clear terms.[51]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. Parties to litigation do not usually provide inspection of documents that are produced as part of an evidence gathering exercise because the fruits of that exercise will be deployed, or not, in an orderly fashion in a witness statement. It seems to me that the court should approach obviousness on the basis that the disclosing party is likely to be conducting the claim on conventional lines.[52]I am satisfied that the Sandoz Defendants have discharged the burden on them of showing that they made a mistake in providing inspection of the document and the mistake would have been obvious to a reasonable solicitor receiving it. In those circumstances, the claimants should have taken immediate steps to notify the Sandoz Defendants and agreed a process by which the document was returned or deleted or both.[53]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. I propose to order that steps are taken, to the reasonable satisfaction of the Sandoz Defendants, to delete all copies of the document from the claimants’ records and that paragraph 87 of Mr Morris’ Twelfth statement on the court file should be redacted.[54]If the parties are unable to agree the terms of an order, I will hear submissions about it either on the handing down of this judgment or on a later date that is convenient to both sides.