Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors

Where related public-interest claims raise substantially common issues, the court should ordinarily address duplication and expense through active case management rather than imposing a blanket stay which effectively makes one claim a test case. A stay requires very strong justification where separate public authorities have distinct legal responsibilities and interests. Joint representation or consolidation may be disproportionate, particularly at an early stage and where conflicts may arise. Case-management options, including sequential determination of issues, remain available as the litigation develops. Disclosure may initially be confined to material already assembled for parallel regulatory proceedings where proportionality, the need to clarify issues and the burden of review justify that course.

Three related claims were brought by English, Scottish, Northern Irish and Welsh health authorities against Servier for alleged breaches of Articles 101 and 102 TFEU concerning the supply of Perindopril, together with an English unlawful-means tort claim. The actions substantially overlapped on liability but involved different claimants, legal frameworks and public interests.

Servier sought a stay of the Scottish and Northern Irish proceedings until the English proceedings were finally resolved, or alternatively consolidation and common representation. It also sought initially limited disclosure from documents held on the European Commission’s file. The court considered the proper approach to managing the parallel proceedings and the first stage of disclosure.

1. Stay application. The application to stay the Scottish and Northern Irish proceedings was dismissed. The appropriate course was active case management of all three actions in parallel. A blanket stay would effectively turn the English proceedings into a test case and could delay the other public-interest claims for several years.
2. Although duplication of work and expense was a real problem, it did not justify a stay at this stage. The Scottish, Welsh and Northern Irish claimants were separate public authorities, operating within significantly different legal frameworks and answerable to different electorates. Their prejudice from being prevented from progressing their claims outweighed Servier’s additional burden, particularly as that burden followed the Commission’s finding of serious breaches of Articles 101 and 102 TFEU, subject to appeal.
3. The court rejected Servier’s alternative proposal for consolidation and compulsory joint representation as disproportionate. The parties were expected to cooperate in good faith to minimise duplication. Possible future directions included lead representation, limits on costs recovery and sequential determination of issues. No party had an unqualified right to have its entire case tried immediately, but the court was not required to impose a blanket stay.
4. Disclosure. In view of the Commission’s recently issued Decision, the parties needed to reassess their pleaded cases and the issues likely to remain. Servier’s initial disclosure should therefore be limited to a review of documents on the Commission’s file, subject to relevance and privilege, with further disclosure issues deferred. The approach was supported by Infederation Ltd v Google Ireland Ltd [2013] EWHC 2295 (Ch). Servier was not precluded from making further disclosure later, and all parties were required to preserve potentially relevant documents.

Not an appeal. The judgment records earlier case-management decisions in the related proceedings, including the October 2012 judgment and Mann J’s refusal of a stay, but this decision was made at first instance.