Introduction

The case of Roche Diagnostics LTD against Greater Glasgow Health Board and Abbott Laboratories LTD ([2024] CSOH 90) adjudicated by the Scottish Court of Session’s Outer House on September 20, 2024, marks a significant development in the realm of public procurement and legal privileges within Scotland’s judicial framework. This dispute centers on the disclosure of confidential documents during public procurement processes, specifically addressing the nuances of legal professional privilege and "without prejudice" privilege.

The primary parties involved are Roche Diagnostics LTD (the pursuer) and Greater Glasgow Health Board along with Abbott Laboratories LTD (the defenders). The crux of the matter lies in Roche Diagnostics’ attempt to recover certain documents from the defenders, which the latter have resisted disclosing on grounds of legal professional privilege and "without prejudice" privilege.

Summary of the Judgment

The Court of Session, presided over by Lord Richardson, examined two pivotal issues:

1. Whether the Greater Glasgow Health Board (First Defender) had waived its legal professional privilege by disclosing documents summarizing legal advice received from the NHS Central Legal Office.
2. The applicability and extent of "without prejudice" privilege in preventing the disclosure of documents related to negotiations between the defendants.

On the first issue, Lord Richardson concluded that the disclosure of the two documents by the First Defender indeed constituted a waiver of legal professional privilege concerning the legal advice detailed within those documents. The court found that the content of these documents went beyond mere references to legal counsel and included substantive details of the legal advice provided, thereby undermining any claim to privilege.

Regarding the second issue, the court deliberated on the existence and scope of "without prejudice" privilege under Scots law. The judgment highlighted a divergence between Scottish and English legal principles concerning this privilege, ultimately determining that the Scottish courts have not adopted the robust "without prejudice" protections as seen in English jurisprudence. Consequently, the court decided to remit this matter for further procedural directions, indicating that a more nuanced examination would be necessary to resolve the dispute over "without prejudice" privilege.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to underpin its reasoning:

• Scottish Lion Insurance Co Ltd v Goodrich Corp (2011 SC 534): This case was pivotal in defining the scope of waiver concerning legal professional privilege, emphasizing that waiver must be assessed objectively based on the circumstances surrounding the disclosure.
• Bullough v Royal Bank of Scotland (2019 SLT 524): Highlighted that merely indicating receipt of legal advice does not equate to a waiver of privilege unless the content of such advice is disclosed.
• Paragon Finance v Freshfields (1999) 1 WLR 1183: Emphasized that partial disclosure of documents does not necessarily compromise privilege unless it leads to unfairness or misunderstanding.
• Dundee University v Chakraborty (2023 SC 297): Reinforced that the manner and context of disclosure are critical in determining whether privilege has been waived.
• Millar v Small (1856) 19D 142: An early case examined to draw parallels with the present dispute, although its applicability was deemed limited.
• Scottish Lion: Referenced multiple times to define objective assessment of waiver.

Legal Reasoning

Lord Richardson meticulously dissected the arguments surrounding both legal professional privilege and "without prejudice" privilege.

Waiver of Legal Professional Privilege

The court applied the principle that waiver must be inferred objectively from the circumstances, not based on the subjective intentions of the party. Upon reviewing the contents of the two disclosed documents, Lord Richardson found that they contained detailed summaries and conclusions of legal advice provided to the First Defender. This disclosure was inconsistent with maintaining privilege, as it divulged substantive aspects of the legal counsel's guidance, thereby constituting a waiver of privilege over those particular pieces of legal advice.

"Without Prejudice" Privilege

The examination of "without prejudice" privilege revealed a significant divergence between Scottish and English legal interpretations. While English law robustly protects communications labeled "without prejudice" during settlement negotiations, Scots law adopts a more restrained approach. Lord Richardson noted that Scottish courts do not extend "without prejudice" privilege to prevent the recovery of documents via discovery requests. Instead, the focus is on the admissibility of statements made within those documents, evaluated in context.

Consequently, the court determined that resolving the scope of "without prejudice" privilege in this case would require a detailed examination of the surrounding circumstances and the specific content of the disputed documents. Hence, the matter was remitted for further procedural orders to address these complexities.

Impact

This judgment carries substantial implications for future public procurement disputes within Scotland, particularly concerning the handling of privileged information:

• **Clarification on Waiver:** The decision provides clear guidance on how partial disclosures can lead to waiver of legal professional privilege, emphasizing the need for parties to exercise caution when releasing documents that contain summaries or details of legal advice.
• **"Without Prejudice" Privilege:** By distinguishing Scottish principles from English ones, the judgment underscores the necessity for litigants to understand jurisdiction-specific rules governing negotiation communications. This divergence may influence how parties approach settlement discussions and document disclosures in Scottish courts.
• **Procedural Directions:** The remittance of the "without prejudice" issue for further procedural orders indicates an evolving approach in Scots law towards balancing open discovery with the protection of negotiation confidentiality, potentially paving the way for more refined rules in the future.

Overall, the judgment reinforces the importance of strategic document management in litigation and public procurement contexts, highlighting the consequences of divulging privileged information.

Complex Concepts Simplified

Legal Professional Privilege

Legal professional privilege is a fundamental principle that protects communications between a lawyer and their client from being disclosed without the client's consent. This privilege ensures that clients can seek legal advice candidly, fostering effective legal representation. In this case, the privilege was claimed by the defenders to protect certain documents from being disclosed to the pursuer.

Waiver of Privilege

Waiver of privilege occurs when a party relinquishes their right to keep certain communications confidential. This can happen intentionally or inadvertently, such as by disclosing sensitive parts of a privileged document. The court assessed whether the defendants had waived their privilege by sharing documents that contained summaries of legal advice, ultimately determining that this disclosure amounted to a waiver.

"Without Prejudice" Privilege

The "without prejudice" rule is designed to allow parties to negotiate settlements without fear that their settlement discussions will be used against them in court if negotiations fail. In some jurisdictions, this privilege extends to the admissibility of documents in legal proceedings. However, the Scottish Court of Session clarified that "without prejudice" privilege in Scotland does not prevent the recovery of such documents but rather affects their admissibility as evidence.

Conclusion

The judgment in Roche Diagnostics LTD v Greater Glasgow Health Board and Abbott Laboratories LTD serves as a pivotal reference point in Scottish law regarding the interplay between legal professional privilege and "without prejudice" communications within the context of public procurement disputes. By affirming that partial disclosures can lead to waivers of privilege and delineating the boundaries of "without prejudice" privilege in Scotland, the court has provided clear directives for future litigants.

Legal practitioners and entities involved in public procurement must now navigate these clarified boundaries with greater precision, ensuring that privileged communications are meticulously managed to prevent unintended waivers. Additionally, the nuanced treatment of "without prejudice" privilege underscores the importance of jurisdictional awareness, particularly for parties operating across different legal landscapes.

Ultimately, the judgment underscores the Scottish judiciary's commitment to balancing the integrity of legal processes with the necessity for transparency and fairness in public procurement, setting a precedent that will influence the handling of privileged information in similar disputes for years to come.