Choose your words wisely: waiving privilege in witness evidence

In a cautionary tale for litigators, the High Court has ordered disclosure of privileged notes of a conversation after a witness referred to the conversation in his witness statement.(1)

Facts

Scipharm, a pharmaceutical company, and Moorfields, an NHS hospital trust, were parties to a pharmaceutical development agreement.  Scipharm alleged that Moorfields had breached the terms of the pharmaceutical development agreement by losing its "good manufacturing practice status".  Consequently, Moorfields was unable to enter into a commercial manufacturing agreement.  Scipharm alleged that it had incurred significant losses as a result of Moorfields' breach.

During the proceedings, the parties had exchanged witness statements.  In one witness statement, Mr Beckers, a witness for Scipharm, referred to a discussion between Scipharm's solicitor and Ms Beveridge, an employee of Moorfields, in his witness statement.  In particular, the statement said "Our solicitor spoke to Margaret Beveridge, who is referred to in paragraph 3 and onwards of the particulars of claim. … Moorfields solicitors wrote in their letter dated 5 March 2018 that SciPharm … was not prepared to commit to non-refundable reservation and cancellation costs given the uncertainty in timing and success of obtaining market authorisation.  Ms Beveridge confirmed to our solicitor that in reality Moorfields did not consider cancellation fees to be appropriate given the size of its manufacturing business.  I do not know who gave this incorrect information to Moorfields solicitors in March 2018." 

Application for disclosure

Mr Beckers' witness statement made no reference to written records of the discussions between Ms Beveridge and Scipharm's solicitor, but Moorfields assumed that they existed.  It applied to the High Court under CPR 31.14 for disclosure and inspection of the 'attendance notes or similar documents' arising from Ms Beveridge's discussions with Scipharm's solicitor, which Moorfields argued had been referred or alluded to in Mr Beckers' witness statement.

Scipharm then disclosed a statement that it had obtained from Ms Beveridge three years before, which had not been referred to in Mr Beckers' witness statement.  Moorfields argued that the statement was inconsistent with what Mr Beckers alleged Ms Beveridge had told Scipharm's solicitor.  Moorfields further argued that it would be unfair to refuse disclosure of the requested documents because of this inconsistency.

Decision
The court accepted that any note of discussions with Ms Beveridge would normally "be plainly a document which was protected by litigation privilege".  In order to determine whether to order disclosure nevertheless, the court had to decide:

1. Had the relevant documents been sufficiently 'mentioned' so that a right to inspect them arose under CPR 31.14?
2. Had there been an express or implied waiver of privilege sufficient to permit inspection?
3. Would it be fair to order disclosure? 

1. Had the attendance notes been mentioned?

Referring to NCA v Abacha,(2) the court accepted that the issue depended on whether there had been a "sufficiently direct allusion" to the document in the body of the witness statement.  Since there was no evidence as to how the information came to be incorporated into Mr Beckers' witness statement, the court inferred was that it "must have been by reference to an attendance note containing the relevant information".  In addition, the court held that it was "unreal to suppose it was based on memory given the passage of time and the lack of any qualification to the effect that what is said is based on unassisted memory".  Accordingly, even though Mr Beckers had not referred to any attendance notes at all, the court held that there was sufficient mention of them.

2. Had privilege in the attendance notes been waived?

The court noted that the law takes privilege extremely seriously as a matter of policy.  The court looked to Magnesium Elektron v Neo Chemicals and Oxides (Europe) Limited,(3) where it had been held that the general rule was to ask whether the contents of the document in question had been "deployed" (i.e. relied upon) rather than merely referenced.

The court held that, as Mr Beckers sought to set out what Ms Beveridge's confirmation as to the position in relation to cancellation charges was, the relevant extract in Mr Beckers' witness statement was clearly an attempt to rely upon the material as opposed to making a mere reference in passing to the existence of the attendance notes.

3. Would disclosure be fair?

Given that the information included in Mr Beckers' witness statement was inconsistent with information provided by Ms Beveridge previously, the court held that, in the circumstances, it would be unfair to allow Mr Beckers to make the assertions in his witness statement without disclosing the records of what Ms Beveridge had, in fact, said.

As all three issues had fallen in Moorfields' favour, the court ordered disclosure.

Comment

This decision serves as a valuable reminder of the risk of waiving privilege when relying upon privileged material in statements of case or witness statements.  Litigators should proceed with caution when making direct or indirect reference to privileged material in statements of case or witness statements.  Even where there is no direct reference to such material, the court may find that it is clear, as in this case, that the information referred to must have been derived from a privileged document.  Litigators must also carefully consider when they are drafting whether they are in fact "deploying" or relying upon, rather than merely referring to, the privileged information.

(1) Scipharm SARL v Moorfields Eye Hospital Foundation Trust [2021] EWHC 2079
(2) NCA v Abacha [2016] EWCA Civ 760, [2016] 1 WLR 4375, see para 23
(3) Magnesium Elektron v Neo Chemicals and Oxides (Europe) Limited [2017] EWHC 2957