The Secretary of State for Health & Anor v Servier Laboratories Ltd

Standard disclosure may be ordered where issues central to a claim fall outside an earlier regulatory investigation or related proceedings. Disclosure from a regulator’s file is not necessarily a substitute for disclosure under CPR rule 31.6. Enhanced disclosure, including documents capable of leading to a train of enquiry, requires a focused and proportionate application and will ordinarily be premature before standard disclosure has been completed and reviewed. Confidentiality alone does not justify withholding relevant third-party documents supplied to a regulator; suitable protection may instead be provided by a confidentiality ring. Where a Commission decision binds a national court, pleadings should generally identify the relied-on findings without duplicating the primary facts supporting them.

Three linked damages proceedings were brought by United Kingdom health authorities against companies in the Servier group. The claims alleged breaches of competition law, including abuses of dominance under Article 102 TFEU, anti-competitive agreements under Article 101 TFEU, and, in the English proceedings, interference with economic interests by unlawful means.

Following a European Commission decision concerning Servier’s conduct, the parties disputed the extent of further disclosure, including disclosure beyond the Commission’s file and documents from related patent proceedings, enhanced and specific disclosure, information about Servier’s organisation, and documents supplied by third parties. The Scottish, Northern Irish and Welsh claimants also sought to plead primary facts underlying the Commission’s findings. The central issues were proportionality in disclosure and the proper pleading of matters determined by the Commission.

1. Standard disclosure. The court ordered Servier to give standard disclosure under CPR rule 31.6 concerning the English economic tort claim, the Article 102 claims alleging abuse of the patent system, and causation and quantum. Those issues lay outside the main scope of the Commission’s investigation and decision, while causation and quantum also lay outside the Apotex proceedings. Disclosure from those sources alone would therefore be partial and incomplete. The public-interest nature and substantial value of the claims, together with the age and importance of issues concerning knowledge and intention, made full disclosure proportionate.
2. Enhanced and specific disclosure. Applications for enhanced disclosure under CPR rule 31.5(7)(d), and specific disclosure under CPR rule 31.12(2), were premature. The parties should first analyse the extensive material already disclosed or offered, complete standard disclosure, and then make focused requests linked to identifiable documents and specific issues. A broad train-of-enquiry order would impose substantial burdens and was not justified at that stage. The approach in Berezovsky v Abramovich [2010] EWHC 2010 (Comm) was respectfully adopted.
3. Third-party material and confidentiality. The earlier disclosure order was not limited to documents supplied by Servier. Relevant third-party documents from the Commission file therefore fell within it. Confidentiality was not, by itself, a sufficient reason to refuse disclosure, consistently with Science Research Council v Nassé [1980] AC 1028. Disclosure into the existing confidentiality ring was sufficient protection.
4. Binding Commission findings and pleading. Findings in the operative part of a Commission decision, and findings in recitals necessary to support them, bind the national court, but only against parties to whom the decision was addressed. The court accepted the approach of the English claimants: pleadings should identify the relevant findings relied upon rather than duplicate the primary facts already taken into account by the Commission. The disputed amendments were disallowed to that extent, subject to agreement on their precise form.

First-instance case management decision in three linked High Court proceedings. The judgment records an appeal by Servier to the General Court of the European Union against the Commission’s decision, but does not itself determine that appeal.