Outer House judge rejects argument that documents lodged by NHS Scotland board in legal dispute were protected by privilege

About this case:

• Citation:
  [2024] CSOH 90
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

Roche Diagnostics Ltd sought declarator that a decision by Greater Glasgow Health Board to abandon the procurement process in favour of extending its contract with the incumbent provider Abbott Laboratories Ltd, which had also participated in the process, was unlawful and argued that an unlawful means conspiracy existed between the defenders. Documents relating to the procurement process were sought which the defenders had argued were protected by legal privilege.

The case was heard by Lord Richardson in the Outer House of the Court of Session. Lord Keen of Elie KC and Breen, advocate, appeared for the pursuer, Linday KC and Blair, advocate, for the first defender, and Lord Davidson of Glen Clova KC and McGinley, advocate, for the second defender.

Inconsistent with confidentiality

The pursuer sought to recover from the defenders documents pursuant to two specifications of documents granted by the court. Following service of the specifications, each defender lodged confidential envelopes with the court but resisted disclosure of their contents to the pursuer on the grounds of legal privilege and the issue of the documents on a “without prejudice” basis. Motions were granted to have the envelopes opened up and their contents considered by a commissioner.

Following submissions by both parties, the commissioner prepared two reports to the court dated to November 2023 and February 2024. It became clear that there were two issues in dispute capable of immediate resolution by the court. The first was that the pursuer claimed that, having disclosed two documents containing summaries of the legal advice provided to it by the NHS Central Legal Office, the first defender had waived legal privilege. The second issue was that the parties disagreed both as to the underlying legal basis of and the correct approach to be taken to cases in which “without prejudice” privilege was asserted.

In respect of the first issue the pursuer submitted that two documents voluntarily provided to it contained detailed summaries of legal advice provided to the first defender. As such, it had acted in a way that was inconsistent with the maintenance of confidentiality over that advice. For the first defender it was submitted that this conclusion would not be reached by an ordinary reader of the documents, which merely indicated that it had taken legal advice.

On the second issue the pursuer’s position was that Scots law did not recognise “without prejudice” as a bar to the production of documents in response to a specification. These issues would be dealt with at the stage of determining admissibility of evidence rather than at the stage of considering recoverability. Senior counsel for both defenders submitted that “without prejudice” privilege did exist in Scots law and ought to be applied in the present case.

No Scottish authority

In his decision, Lord Richardson said of the issue of privilege: “Looking at the two papers in detail, I do not consider that the first defender’s position is tenable. It is undeniable that they contain the detail of aspects of the advice tendered to the first defender. In this regard, I do not consider that it matters that the documents bear to have been prepared by the first defender itself rather than its legal advisers. The first paper, in particular, discloses details of the legal advice which the first defender received in respect of the developing dispute with the second defender arising out of the procurement exercise.”

He added: “Although it is true that the first defender has not directly put the content of the legal advice it received in issue in the pleadings, the nature of the legal advice it received has a bearing on matters which the first defender seeks to prove. The first defender avers that its decision to abandon the procurement process was one which a reasonable contracting authority could reach. Further, the first defender avers that it had no other realistic option but to extend its existing contract with the second defender. In both cases, the first defender seeks to justify the decisions which it has taken in the course of the procurement process. That is, of course, precisely the intention of both of the papers founded upon by the pursuer.”

Analysing past decisions on the “without prejudice” principle, Lord Richardson said: “The fundamental problem for the defenders’ argument is that it is apparent that the courts in Scotland have not adopted the without prejudice rule as it is understood in England and Wales. In Scotland the starting point for the treatment of statements made in the course of negotiations is a recognition that offers, suggestions and concessions or other statements made for the purpose of negotiating a settlement cannot be converted into admissions of fact.”

He continued: “I do not find it surprising that senior counsel for the defenders were unable to provide any Scottish authority for the proposition that ‘without prejudice’ privilege provided a means for resisting the production of documentation in response to a specification of documents. For what it is worth, the only case cited to me in which the question appears to have been at issue, Millar v Small (1856), pointed in the other direction. In that case, documents relating to the settlement of an action between two parties were held to be recoverable at the instance of a third.”

Determining how to continue, Lord Richardson concluded: “I consider that these two questions ought properly to be resolved in the context of all the surrounding circumstances once any evidence deriving from these documents has been heard, under reservation. That exercise will be facilitated in the present case by the use of witness statements in lieu of evidence in chief.”

Having rejected the defender’s submissions on these points, the case was put out by order to allow addresses by the parties on further procedure.