Choose Your Words Wisely: Waiving Privilege In Witness Evidence

• Published date: 10 November 2021
• Subject Matter: Corporate/Commercial Law, Privilege
• Law Firm: Reynolds Porter Chamberlain
• Author: Ms Suera Hajzeri and Davina Given

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...