L'Oreal SA & Ors v Bellure NV & Ors

Disclosure is confined to material relevant to the issues in the proceedings. Earlier witness statements may be used only within the limits imposed by Civil Procedure Rules 1998 rule 32.12. An earlier expert report is not protected merely because it was prepared in other proceedings, but it must still be relevant before disclosure is ordered. Where a party deploys the results of an information-gathering exercise as representative evidence, fairness requires disclosure of the exercise’s results in full. Mere reference to documents in a witness statement does not necessarily waive privilege; deployment for the purposes of the case is required. Applications for settlement terms may be premature where liability is the only issue yet to be determined.

The defendants applied for disclosure of material used by the claimants in earlier, related proceedings. The material included skeleton arguments, witness statements, expert reports, interview materials and settlement terms. The defendants argued that the material could expose inconsistencies, test witness credibility and assist in assessing the reliability of evidence deployed in the present trade mark infringement and passing-off action.

The court considered the restrictions governing use of earlier witness statements, the status and relevance of earlier expert reports, implied waiver following reference to documents, and whether settlement terms should be disclosed before the liability issue had been determined.

1. Earlier witness statements and other material. The earlier skeleton arguments, most witness statements and Mrs Johnson’s expert report had no evidential relevance beyond an attempt to discredit the claimants’ witnesses. That was not a proper basis for disclosure. Rule 32.12 of the Civil Procedure Rules 1998 confined use of witness statements to the proceedings in which they were served, subject to its stated exceptions.
2. Mr Barter’s expert report. The position governing expert reports was distinct from the witness-statement regime. The service of an expert report waived privilege in it, following Bourns Inc v Raychem (No.2) [1999] FSR 641, and the Civil Procedure Rules 1998 did not restore that privilege. Disclosure in the present action nevertheless required relevance. Mr Barter was an expert in the present case, and the earlier report was relevant to the reliability of his opinion, not merely his credit. Disclosure was therefore limited to that report, and did not extend to the surveys he had considered.
3. Interview materials. Under rule 31.14, as discussed in Lucas, mere mention of documents in a witness statement did not create an implied waiver. The claimants nevertheless chose to deploy Mr Quinn’s interview exercise as evidence of representative public perception. Fairness and the need to test whether the asserted result was truly representative required production of the complete results of the exercise, including the material not selected for use. The court relied on the reasoning in Samaan v Tetrosyl [1981] Commercial Law Reports 138 and Nea Karteria [1981] Commercial Law Reports 138.
4. Settlement terms and costs. Disclosure of settlement terms was premature while the only issue proceeding was liability. The application was dismissed at that stage, leaving possible relevance to be considered later in light of Nitro. The claimants were awarded the costs of the disclosure application because the defendants had substantially conceded relief after inadequate initial disclosure.

First-instance ruling on interlocutory disclosure applications. No appellate history was stated in the judgment.