The High Court has ordered a claimant to disclose its lawyer’s attendance note (or notes) of discussions with one of the defendant’s employees, on the basis that the notes were “impliedly mentioned” in the claimant’s witness statement and the claimant had waived privilege: Scipharm SARL v Moorfields Eye Hospital Foundation Trust  EWHC 2079 (Comm).
The court can order disclosure of any document mentioned in certain types of document, including statements of case and witness statements. The power derives from CPR 31.14 or, in cases which fall within the disclosure pilot in the Business and Property Courts, paragraph 21 of Practice Direction 51U. In both cases, a document can be “mentioned” even if it is not mentioned by name, so long as there is a direct allusion to it.
In this case, the court held that the requirement was satisfied because the witness statement said the defendant’s employee had confirmed certain matters to the claimant’s solicitor, and the obvious inference was that this information must have derived from an attendance note, rather than mere memory, given the passage of time since the discussion with the employee.
While the attendance note would have been a privileged document, the court held that privilege had been waived because the contents of the note had been deployed in support of the claimant’s case and it would be unfair to allow the claimant to do so without disclosing the whole of the material.
The decision acts as a reminder that a party relying on privileged information may find they have waived privilege more broadly than intended.
The underlying dispute related to a pharmaceutical development agreement between the claimant and the defendant. The claimant alleged that the defendant breached the agreement by losing its good manufacturing practice status, and as a result the claimant incurred significant losses because it was unable to enter into a commercial manufacturing agreement with the defendant.
An issue arose as to the parties’ subjective intentions in negotiating the agreement. While the judge expressed “very grave doubts” as to whether subjective intention had any role to play in the case, both parties proceeded on the basis that it was a relevant issue.
The defendant applied under CPR 31.14 for disclosure of the following documents which were referred to in one of the claimant’s witness statements and which the defendant said fell under that rule:
- A work-sharing agreement, on the basis that the statement referred to a “work-sharing arrangement” as the basis for asserting that costs sought to be recovered from the defendant were shared as between the claimant and a third-party.
- Attendance notes or similar documents arising from the claimant’s solicitors discussions with Margaret Beveridge, the business development manager of the defendant, on the basis that the statement said that Ms Beveridge had confirmed certain matters to the claimant’s solicitor regarding the defendant’s views at the relevant time. After the application was issued, the claimants disclosed a statement they had obtained some three years before from Ms Beveridge, and which hadn’t previously been disclosed, and the defendant contended “with some justification” that it was not consistent with what the claimant alleged she had told the claimant’s solicitors.
(It is not clear why the defendant applied under CPR 31.14, rather than under paragraph 21 of PD 51U, but the application was dealt with on that basis.)
The High Court (HHJ Pelling QC sitting as a High Court judge) allowed the application.
The judge noted that the witness statement was silent as to whether the work-sharing arrangement was written or oral. He held that, by referring to a work-sharing arrangement in that way, CPR 31.14 was sufficiently engaged to entitle the defendants to ask for delivery up of any written document constituting the work-sharing arrangement.
The claimant’s solicitors had stated in correspondence that the work-sharing arrangement was not in writing, but there was no evidence to that effect. The judge therefore directed the claimant to provide a short supplemental witness statement confirming the position.
Attendance notes of discussions with Ms Beveridge
As to whether the requirement for the attendance note (or notes) to be “mentioned” was satisfied, that depended on whether there had been a sufficiently direct allusion to the document: see NCA v Abacha  EWCA Civ 760 (considered here). (And the test of “direct allusion” is incorporated expressly in paragraph 21 of PD 51U.)
The judge accepted that, in the absence of an explanation as to how the information came to be recorded and incorporated into the witness statement, the obvious inference was that it must have been by reference to an attendance note, or notes, particularly considering that the statement referred to information supplied by Ms Beveridge some time earlier (inferentially, some three years earlier when the witness statement was given). It was “unreal” to suppose the statement was based on memory.
Since attendance notes of a witness interview would be privileged, the next question was whether there had been an express or implied waiver of privilege. That turned on whether the contents of the documents had been deployed by the claimant. The judge found that the witness statement had plainly attempted to rely on the documents, rather than a merely referring in passing to their existence, and so there had been a waiver.
The final question was whether the court should exercise its discretion to order disclosure. That boiled down to whether it would be unfair to allow the claimant not to reveal the whole of the privileged document(s). The judge held that it would be unfair for the claimant to be permitted to rely on the evidence as to what Ms Beveridge had said, while there was a witness statement from her that appeared to say something different, without disclosing the whole of the material that was impliedly mentioned, namely the records of what Ms Beveridge had in fact said.