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

Legal advice privilege for a corporate client depends on whether the relevant individual was authorised to seek or receive legal advice on the client’s behalf. Mere authority to provide information to assist a lawyer is insufficient. The party claiming privilege bears the burden of proving it and must identify the relevant parties and communications with precision.

Where a privileged document is disclosed by mistake, the applicant must establish privilege, mistake, and that the mistake was obvious to the reviewing solicitor or ought to have been obvious. Relief remains discretionary. The court should consider the document’s form, content, metadata, the disclosure process and the extent of reliance on it.

The claimants brought passing-off proceedings concerning the get-up of the defendants’ generic inhaler. At a case management conference, two privilege issues arose.

First, the defendants claimed legal advice privilege over two internal emails passing information within the Sandoz group for the purpose of obtaining external legal advice. The claimants challenged that claim under CPR 31.19(5).

Secondly, the defendants sought relief under CPR 31.19(20) concerning a document said to be subject to litigation privilege and disclosed by mistake. The central questions were whether the evidence established privilege, whether the disclosure was mistaken, whether the mistake was obvious, and what discretionary relief should follow.

1. Legal advice privilege. The defendants failed to discharge the burden of proving privilege over the two emails. The relevant question was not simply whether the employees were authorised to provide information. They had to show that the individuals were authorised to seek or receive legal advice on behalf of the relevant corporate client. Preparatory information-gathering by persons without that authority is not protected by legal advice privilege.
2. The evidence was inadequate. It failed to identify the communicating individuals in the original description, the company or companies claiming privilege, and the class of employees said to have authority. The witness evidence also contained an unexplained conflict and misstated the legal test. The claimants were therefore entitled to inspect the emails.
3. Disclosure by mistake. Applying the principles summarised in Al Fayed v The Commissioner of Police for the Metropolis [2001] EWCA Civ 780, the defendants established that the document was privileged, had been disclosed by mistake, and that the mistake would have been obvious to a reasonable solicitor. Its narrative form, headings, reference to evidence, and account of historic events indicated that it was part of an evidence-gathering exercise. Its metadata described it as a 2015 statement and would also have revealed the mistake.
4. Relief was discretionary and no automatic remedy followed from satisfying the three elements. Given the limited reliance on the document and the distance from trial, it was just to order deletion of all copies from the claimants’ records and redaction of the relevant paragraph of the witness statement.

The judgment was a first-instance case management decision. The judgment describes earlier case management orders and a related judgment concerning the product get-up, but no appellate decision is stated.