Roche Diagnostics Ltd against Greater Glasgow Health Board and another (Court of Session)

Factual and Procedural Background

The opinion arises from a commercial action involving a document recovery procedure between the Pursuer and two Defenders. The court had previously issued decisions concerning the disclosure of documents and related privilege issues. The document recovery process followed interlocutors dated 22 August and 7 September 2023, with a commissioner providing reports on 20 November 2023 and 23 February 2024. Despite these efforts, the Pursuer had recovered very little documentation due to resistance from the Defenders. A preliminary hearing took place on 15 September 2023, and a debate hearing was held on 6 December 2023, during which the Defenders challenged the relevancy of the Pursuer's claims based on unlawful means and unlawful means conspiracy. The court repelled these pleas. Following a hearing on 5 August 2024, the court issued an opinion on 20 September 2024 addressing issues arising from the document recovery procedure. The Defenders sought leave to reclaim aspects of this decision, as well as an earlier decision from the court. The present opinion addresses the Defenders' motions for leave to reclaim and the court's refusal of those motions.

Legal Issues Presented

1. Whether the first Defender waived its right to resist disclosure of documents containing legal advice by voluntarily disclosing parts of that advice in briefing papers.
2. The correct legal approach to the Defenders' plea of "without prejudice" privilege concerning certain documents.
3. Whether the Pursuer's averments relating to unlawful means and unlawful means conspiracy are relevant and whether the earlier decision on this point should be reclaimed.

Arguments of the Parties

First Defender's Arguments

• The first Defender argued that the court's decision on waiver raised an important issue of principle, particularly in the context of a procurement exercise involving duties of transparency and reason-giving.
• The first Defender contended that leave to reclaim should be granted to address the waiver issue before any documents were disclosed, warning that once documents were released ("the genie out of the bottle"), the situation could not be reversed.

Both Defenders' Arguments on Without Prejudice Privilege

• Both Defenders submitted that there are significant differences between Scottish and English law regarding "without prejudice" privilege, noting a lack of recent Scottish authority on the matter.
• They argued that leave to reclaim should be granted to avoid irretrievable prejudice that would result if the contested documents were disclosed to the Pursuer.

Defenders' Position on Unlawful Means and Unlawful Means Conspiracy

• The Defenders indicated that if leave to reclaim was granted on other points, they would also seek to reclaim the earlier decision on the relevancy of the Pursuer’s claims relating to unlawful means and unlawful means conspiracy.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Scottish Lion Insurance Co Ltd v Goodrich Corp 2011 SC 534	Authoritative statement of the law on waiver of legal and professional privilege.	The court applied this established law to conclude that the first Defender waived privilege by voluntarily disclosing legal advice in briefing papers.
Rush & Tompkins v Greater London Council [1989] 1 AC 1280	Principles relating to "without prejudice" privilege in English law.	Referenced to illustrate differences in approach between Scotland and England on "without prejudice" privilege, noting the absence of recent Scottish authority.
Bradford & Bingley v Rashid [2006] 1 WLR 2066	English case law on "without prejudice" privilege.	Used to contextualize procedural and substantive differences in privilege claims.
Ofulue v Bossert [2009] 1 AC 990	English authority on "without prejudice" privilege.	As above, cited to compare Scottish and English approaches.
Oceanbulk Shipping & Trading v TMT Asia [2011] 1 AC 662	English authority on "without prejudice" privilege.	Referenced similarly in discussion of privilege principles.
Cutts v Head [1984] Ch 290	Recognition of the public interest in encouraging settlement negotiations without fear of disadvantage.	Cited to show the balance between protecting negotiations and open justice in privilege claims.

Court's Reasoning and Analysis

The court considered the Defenders' motions for leave to reclaim in light of the Rules of Court governing reclaiming motions in commercial actions, emphasizing the need for effective case management. The court noted the procedural history, including prior hearings and interlocutors, and the limited recovery of documents to date.

Regarding waiver, the court rejected the argument that the issue raised a novel principle requiring reconsideration, finding that the law was well-established and had been authoritatively set out in precedent. The court held that the first Defender had waived privilege by voluntarily disclosing details of legal advice in briefing papers, and thus no basis existed to grant leave to reclaim to prevent document disclosure.

On the "without prejudice" privilege, the court acknowledged differences between Scottish and English law but found these related more to procedural than substantive principles. The court balanced the public interest in encouraging dispute resolution against the open administration of justice. It concluded that releasing the documents would best allow the parties to resolve issues of privilege and admissibility in the context of evidence and submissions, preserving the Defenders' rights to challenge the use of the documents later.

Concerning the claims of unlawful means and unlawful means conspiracy, the court recognized the Defenders' interest in reclaiming earlier decisions but noted that the Pursuer had narrowed its arguments and did not insist on these claims during the hearing. The court further observed the absence of higher authority on these remedies and determined that the issues were fact-specific and required proof, thus not suitable for reclaiming at this stage.

Overall, the court found that allowing the Defenders to reclaim would not be the most effective way to resolve the dispute, considering both the individual and cumulative circumstances.

Holding and Implications

The court REFUSED LEAVE TO RECLAIM the decisions dated 20 September 2024 and the earlier decision referenced.

This refusal means that the orders for document disclosure and related rulings on privilege and relevancy stand. The Defenders must comply with the disclosure orders and may challenge the use of documents in due course through appropriate evidential and procedural means. No new precedent was established; the court applied existing legal principles to the facts of the case, prioritizing efficient case management and the fair resolution of the dispute.