Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Ors

Disclosure must be conducted with due care and in accordance with the applicable disclosure test. Where potentially disclosable material has been deleted, the court may require a detailed, first-hand explanation, even if the material can no longer be recovered. A disclosure statement does not adequately address a deleted source unless its wording sufficiently identifies it. Documents disclosed merely for context should be identified separately where that would materially reduce the receiving party’s review burden. The court has power under the Civil Procedure Rules 1998 to manage a notice to admit facts and impose conditions, although a party cannot be compelled to admit facts. The timing and collaborative preparation of such a notice are relevant to the exercise of that discretion.

The claimants brought passing-off proceedings concerning a generic inhaler marketed by the defendants. At an interlocutory hearing before trial, they sought orders concerning three matters: an explanation for the deletion of the defendants’ DocXChange platform; further responses to a notice to admit facts; and identification of documents disclosed for context rather than because they satisfied the standard disclosure test.

The court considered the defendants’ disclosure duties, the scope of its case-management powers, and whether the applications should be determined immediately in circumstances where the litigation remained procedurally unsettled.

1. Deleted platform. The defendants’ disclosure duties extended to documents formerly in their control. Their disclosure statements did not sufficiently identify the DocXChange platform, and the evidence did not establish whether the platform contained documents that had not been disclosed elsewhere. The court therefore ordered a fuller explanation, based on first-hand evidence from persons with knowledge of the deletion and the circumstances in which it occurred. The purpose was to determine whether the error was serious or relatively minor.
2. Notice to admit facts. Under Civil Procedure Rules 1998, r 32.18, a notice to admit facts is a procedural device intended to avoid the cost of proving uncontroversial matters. The rule contains no sanction for refusing to admit facts, although a costs consequence may arise later under r 42. A party cannot be forced to admit facts or prevented generally from advancing evidence in support of its case.
3. The court nevertheless had power under rr 3.1(2)(m) and 3.3(b), applying the overriding objective, to require an appropriate response or impose a condition. That discretion was not exercised immediately. The notice was extensive, some matters did not lend themselves to a simple admission or non-admission, the request had been made late and without sufficient collaboration, and the litigation was in flux. The relevant part of the application was adjourned for possible reconsideration after exchange of witness statements.
4. Document families. The standard disclosure test under r 31.6 had to be applied strictly. Documents supplied merely for context should not be treated as standard-disclosure documents unless the court’s order required that. The defendants were ordered to provide an electronically usable list identifying documents tagged as relevant by content, so as to reduce the claimants’ review burden.

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