Roche Diagnostics LTD against Greater Glasgow Health Board and Abbott Laboratories LTD (Court of Session)

Factual and Procedural Background

This case involves a dispute concerning public procurement. The Plaintiff is seeking to recover documents from both Defendants pursuant to two court-granted specifications of documents. Following service of these specifications, each Defendant lodged confidential envelopes with the court, resisting disclosure on grounds including legal professional privilege, "without prejudice" privilege, and commercial confidentiality. A commissioner was appointed to review the contents of the envelopes and prepare reports to the court. After receiving the reports, the court identified two primary issues for immediate resolution: whether the Plaintiff's receipt of two documents summarising legal advice from the first Defendant amounted to a waiver of legal privilege; and the appropriate legal approach to "without prejudice" privilege in this context. The parties agreed that other issues, including commercial confidentiality asserted by the second Defendant, would be considered after resolution of these two issues.

Legal Issues Presented

1. Whether the first Defendant waived legal professional privilege by disclosing two documents summarising legal advice to the Plaintiff.
2. The legal basis and correct approach to the assertion of "without prejudice" privilege in relation to the recovery of documents in Scottish law, particularly where such privilege is asserted by two Defendants against a third party.

Arguments of the Parties

Plaintiff's Arguments

• The two documents voluntarily disclosed by the first Defendant contained detailed summaries of legal advice, thus waiving privilege.
• Disclosure of these documents was inconsistent with maintaining confidentiality over the legal advice.
• Scottish law does not recognise "without prejudice" privilege as a bar to document recovery; such communications are of limited probative value but not immune from production.
• Relied on historical Scottish authorities emphasizing a broader right to recover documents and a pragmatic approach to "without prejudice" communications.
• Advanced alternative English-law-based arguments that the agreement resulting from privileged negotiations is not covered by privilege, and that an exception for "unambiguous impropriety" applies.

First Defendant's Arguments

• The two documents merely indicated that legal advice was taken and contained conclusions, not the advice itself, thus no waiver occurred.
• The disclosure was not partial or unfair and did not amount to waiver of legal professional privilege.
• Even if waiver occurred, it was limited to the advice relied upon in the two documents.
• Asserted that "without prejudice" privilege exists in Scots law and should protect negotiations from disclosure.
• Emphasised the public policy of encouraging settlements and preventing prejudice to parties in negotiations.
• Accepted unequivocal admissions may be admissible but contended documents should be considered in context before any determination.

Second Defendant's Arguments

• Supported the first Defendant's position on the existence and application of "without prejudice" privilege in Scots law.
• Highlighted the chilling effect that disclosure of negotiation communications could have on settlement discussions.
• Argued there is no significant difference in principle between Scots and English law regarding the protection of negotiation communications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the first Defendant waived legal professional privilege by disclosing two documents summarising legal advice. The court applied the objective standard for waiver as established in Scottish Lion Insurance Co Ltd v Goodrich Corp, disregarding the Defendant's subjective intention. The court found that the documents contained detailed aspects of legal advice, not merely the fact that advice was taken or conclusions drawn, thus constituting a waiver of privilege regarding that advice. The court rejected the Defendant's contention that the waiver was limited or partial, emphasizing fairness and the risk of misunderstanding from selective disclosure. The court noted that the legal advice was material to the Defendant's justification of its procurement decisions, further supporting waiver. The court proposed remitting the matter to the commissioner to exclude documents subject to the waiver but reserved further procedural directions.

Regarding "without prejudice" privilege, the court analysed Scottish authorities and contrasted them with English law. It observed that Scots law does not recognise "without prejudice" as an absolute bar to document recovery but treats such communications as having limited probative value, with admissibility determined contextually. The court highlighted the pragmatic Scottish approach, where clear and unequivocal admissions in "without prejudice" communications may be admissible. The court found no Scottish authority supporting the use of "without prejudice" privilege to resist document recovery in specifications. It concluded that issues of privilege and admissibility concerning these documents should be resolved after the parties have had the opportunity to consider the documents and present evidence under reservation. The court dismissed concerns that this approach would chill negotiations, noting established Scottish jurisprudence allowing admission of unequivocal statements made "without prejudice".

Holding and Implications

The court's decision was to PUT THE CASE OUT BY ORDER to allow further submissions on procedure following its findings on the two key issues.

Specifically, the court held that the first Defendant has waived legal professional privilege in respect of the legal advice detailed in the two disclosed documents, entitling the Plaintiff to access related materials. The court declined to decide at this stage the extent of "without prejudice" privilege over the disputed documents, directing that this issue be addressed after further procedural steps allowing evidential consideration under reservation.

The immediate effect is that the Plaintiff may pursue disclosure of legal advice documents subject to waiver, while the question of "without prejudice" privilege remains open for future determination. No new precedent was established beyond the application of existing principles, and the case proceeds with further procedural directions.