The University of Sheffield v KuDOS Pharmaceuticals Limited

Disclosure issues must identify only the key disputed issues for which contemporaneous documents are needed for a fair resolution. They should not reproduce every pleaded issue. The approach to narrative documents is pragmatic. A document that may help or hinder a party’s case is disclosable; narrative documents provide background or context. In deceit claims, the default position may be wider disclosure, including narrative documents, where they may explain the circumstances of the alleged representations. The court must nevertheless control the burden and volume of disclosure. A proposed amendment which clarifies an existing case, rather than introducing a new case, may properly be allowed without adjournment where the opposing party has suffered no material prejudice.

This was the first case management conference in a high-value claim concerning a licence for pharmaceutical patent rights and a later letter agreement relating to a collaboration involving Lynparza. The claimant alleged misrepresentation and deceit and sought relief concerning payments said to be due under the licence.

The judgment determined an application to amend the defence, the claimant’s application to adjourn consideration of part of that amendment, and disputed issues concerning disclosure. The disclosure disputes concerned the identification of key issues, the scope of issues relating to alleged representations, and whether narrative documents should be included within Model D disclosure.

1. Amendment. The application to adjourn consideration of the proposed amendment to paragraph 110.2 of the defence was refused. The amendment did not introduce a new case. It particularised why the relevant contractual clauses were said to satisfy the reasonableness requirement in Unfair Contract Terms Act 1977, section 11(1). The amendment clarified the defendants’ position and caused no realistic prejudice. Permission to amend was therefore granted.
2. Issues for disclosure. Paragraph 7.6 of Practice Direction 57AD requires the parties to identify the key issues in dispute for which disclosure of contemporaneous documents is needed for a fair resolution. It does not extend to every issue raised by denial or non-admission. The proposed issue concerning whether the collaboration could objectively have been structured as a share transfer was not a separate key issue for disclosure. Documents relevant to it would be captured by the agreed issues concerning the parties’ actual consideration of alternative structures.
3. The proposed issue concerning time pressure surrounding the transaction and its announcement was a proper issue for disclosure because the defendants’ admission was only partial and the extent of pressure on the relevant representatives was material to the deceit claim. The proposed addition concerning legal advice was refused because it concerned a matter already admitted and therefore did not identify a disputed key issue. A further proposed limb of issue 17 was also refused because it did not properly extend an existing disclosure issue or justify a standalone issue.
4. Narrative documents. The test suggested in Bouygues UK Limited v Sharpfibre Limited [2020] EWHC 1309 (TCC), paragraph 40, was not part of that decision’s ratio and was overly complex. The proper approach is pragmatic. Narrative documents are background or contextual documents, and should be disclosed where they may help or hinder a party’s case. In this deceit claim, narrative documents were ordered for issues 10 and 11 because the issues concerned the alleged representations and the structuring representation. They were not ordered for issue 27 concerning loss and damage, where the need was less compelling and the burden of disclosure required restraint.

The judgment states that this was the first time the claim had come before the court. No prior appellate decision is stated.