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

When deciding whether to join a new party, the court should focus on enabling persons whose rights may be affected to be heard and on the Overriding Objective. Joinder may be appropriate where the party’s involvement could otherwise create liability or information gaps, even at a late stage.

English courts will ordinarily order disclosure notwithstanding possible breach of foreign law. The court may, however, take the risk of conflict into account when exercising its flexible case-management discretion. Specific electronic disclosure must remain reasonable and proportionate, with appropriate search protocols and realistic timeframes.

The claim concerned alleged passing off by the Sandoz defendants in relation to a generic inhaler product. At a pre-trial review, the claimants applied to join Sandoz AG and two Vectura companies, and sought further specific disclosure from Sandoz, including documents held by former employees in Germany.

The joinder of Sandoz AG was agreed. The court determined whether Vectura should be joined, whether German data-protection and telecommunications law justified withholding documents, and what further searches and disclosure should be ordered.

1. Joinder. Under CPR rule 19.2, the relevant considerations include whether adding the party would enable the court to resolve all matters in dispute or a connected issue. The two lodestars are the policy of enabling persons whose rights may be affected to be heard and the Overriding Objective, as stated in In Re Pablo Star Ltd [2017] EWCA Civ 1768. The court must assess the circumstances in the round, including delay, prejudice, complexity, alternative procedures and the risk of information or liability gaps.
2. Vectura was a key party alleged to have designed, developed and licensed the product. Its joinder could add burden and complexity, but could also assist in defining and resolving the dispute. Separate later proceedings or third-party disclosure would not satisfactorily address the identified gaps. Vectura was therefore ordered to be added as a defendant.
3. Foreign law and disclosure. English courts are ordinarily entitled to order disclosure even where compliance may breach foreign law. Such a risk is not, by itself, an excuse for non-compliance. It may nevertheless be considered when exercising the court’s flexible discretion.
4. The GDPR provided a lawful basis for processing personal data where processing was necessary to comply with a legal obligation, and permitted processing for legitimate interests subject to a balancing exercise. The court considered the risk of German prosecution for complying with the disclosure order remote. It rejected the objection to disclosure.
5. Further disclosure. Specific disclosure had to be approached cautiously in complex electronic litigation. Search terms, foreign-language equivalents, reviewer capacity, timing and proportionality required careful management. Searches were ordered for most identified custodians, while disclosure of further design drawings and a witness statement about deleted data was refused on the evidence then available. The matter was otherwise to proceed under a work programme and directions from the Master where necessary.

First-instance case-management decision. The judgment records that certain earlier joinder issues concerning the Second to Fourth Defendants had been determined by the Court of Appeal, but no citation for that decision is given.