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27 November 2018
With privilege remaining a hot topic, and with the recent SFO v ENRC(1) decision still fresh in many legal professionals' minds, another judgment on legal advice privilege has been handed down – this time with a lesson for solicitors drafting supporting witness statements.
The decision arose out of the long-running dispute between Glaxo Wellcome (and another) and Sandoz Limited (and others) in relation to allegations that the defendants had passed off their generic inhaler product as the claimants' own highly successful Seretide Accuhaler inhaler.
The first to fourth defendants (the Sandoz defendants) asserted legal advice privilege over 24 documents. Glaxo challenged the claim for privilege over two of the documents listed:
As demonstrated in SFO v ENRC, a corporate body must show that the person communicating with a lawyer is "authorised to seek and obtain the legal advice that is the reason for the communication" in order to rely on legal advice privilege. In this case, Chief Master Marsh agreed with Glaxo and found that the email from the Sandoz defendants' in-house lawyer to the recipient was not sent to an authorised person with the requisite authority to seek external legal advice; therefore, the claim for privilege failed.
In the course of his judgment, Marsh was critical of the Sandoz defendants' solicitor's witness statement supporting the claim for privilege for the following reasons:
It is of crucial importance to ensure that the utmost care is taken when making a claim to privilege, not least because the opposing party will usually have no choice other than to rely on what it is told. A solicitor drafting a supporting witness statement should ensure that it is compliant with Practice Direction 32 and consider their duties under the Code of Conduct when making assertions that might be seen to rely on evidence which is not properly verified. Any failure to comply may have serious consequences.
For further information on this topic please contact Joseph Cresswell or Jonathan Cary at RPC by telephone (+44 20 3060 6000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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