Astex Therapeutics Ltd v Astrazeneca AB

A party claiming privilege must identify the documents or clearly defined classes of documents withheld and explain the legal basis for the claim. A general assertion that documents are privileged by their nature is inadequate.

Legal advice privilege protects confidential communications between lawyer and client, and documents forming part of the necessary exchange of information for obtaining legal advice. It does not ordinarily protect lawyers’ notes of information-gathering interviews with employees or former employees who are third parties for this purpose. Litigation privilege requires evidence that litigation was reasonably in contemplation and that the dominant purpose test is satisfied.

Astex and AstraZeneca were parties to a collaboration agreement concerning the development of BACE inhibitors. After AstraZeneca changed its position on whether two compounds qualified as candidate drugs, disclosure disputes arose in the ensuing claim.

Astex applied for an order requiring AstraZeneca to list each document arising from its internal review over which privilege was claimed. AstraZeneca relied on broad descriptions of legal advice privilege and litigation privilege, including for lawyers’ attendance notes of interviews with current and former employees. The issues were whether those notes were protected by legal advice privilege, whether litigation privilege had been established, and whether further particulars should be ordered.

1. The application was granted in substance. AstraZeneca was required to provide further evidence supporting and explaining its privilege claims, including a list of the documents claimed to be privileged, their dates, the privilege relied on, the identity of interviewed employees and former employees, and evidence addressing the commencement and dominant purpose of any litigation privilege.
2. Under CPR Part 31, a party claiming a right or duty to withhold inspection must state that right or duty and the grounds on which it is claimed. The description must identify the nature of the documents or clearly defined classes and explain the factual basis for the claim.
3. Legal advice privilege protects confidential communications between lawyer and client for the purpose of giving or obtaining legal advice. It may extend to documents forming part of the necessary exchange of information for that purpose, but it does not ordinarily protect attendance notes of interviews with employees or former employees who are third parties for privilege purposes. There might be an exception for current employees forming part of the authorised client class.
4. Litigation privilege requires both a dispute reasonably to be in contemplation and a dominant purpose of obtaining or giving legal advice or preparing for actual or contemplated litigation. A party cannot establish those requirements by self-certification alone. AstraZeneca’s evidence did not adequately establish the relevant date or dominant purpose.
5. The further evidence had to be given by a proper officer of AstraZeneca rather than solely by its solicitors. AstraZeneca confirmed that no privilege was claimed for documents created before 1 January 2015.

First-instance decision. No appellate history was stated in the judgment.