The decision in Astex Therapeutics Ltd v AstraZeneca is notable in the context of disclosure and on how legal and litigation privilege are interpreted.
Background
The claim arose out of an agreement between Astex Therapeutics Ltd and AstraZeneca to participate in a research programme intended to produce “candidate drugs” to treat Alzheimer’s disease. The agreement ultimately ended with no drugs having been nominated. An issue arose subsequently as to whether two drugs later identified by AstraZeneca could be classified as “candidate drugs” for the purposes of the agreement between the parties. AstraZeneca undertook an internal review of the drugs in question and informed Astex that it did not consider them to be within that category. Astex made a Part 18 request for disclosure of the documents relating to AstraZeneca’s internal review. AstraZeneca claimed legal advice privilege in relation to communications with patent attorneys and its external legal advisors and between in-house counsel and its employees. Legal advice and litigation privilege were claimed in relation to attendance notes of conversations of meetings with present and former employees.
Issue
Astex disputed the form of AstraZeneca’s claims to privilege and, in particular, it argued that attendance notes of conversations with employees and third parties are not covered by legal advice or litigation privilege. Astex applied for an order requesting that AstraZeneca provide a list detailing each document over which privilege was asserted.
Decision
The court ruled in favour of Astex: AstraZeneca’s approach to claiming privilege was unsatisfactory and further evidence as to the claim to privilege was essential.
Attendance notes of conversations with employees made by in-house counsel and external lawyers cannot be the subject of legal advice privilege. Legal advice privilege does not extend to an information gathering exercise where information is sought from employees, in this case, pursuant to a review of the contract, undertaken before a dispute was in reasonable contemplation. Even a wide interpretation of legal advice privilege would not cover such documents.
As to the claim for litigation privilege, a party cannot self-certify that “litigation was in contemplation.” The test is objective and unless it is obviously satisfied, some evidence may be required to assist the court. An officer of a litigating party, rather than its solicitor, is best placed to give such evidence.
General guidance
A number of practice points can be drawn from this decision.
To state that documents are “by their nature privileged” has no place in modern litigation, let alone litigation of very real complexity. Although this was at one time the convention when describing documents over which privilege was asserted, this may no longer be sufficient. Parties do not need to detail every document covered by privilege individually, but it is helpful at least to indicate the nature of the document and the factual basis of the grounds giving rise to privilege.
For example, it is unlikely to be sufficient to state in Part B of the disclosure list, as is often done, that “the Defendant has control of the documents listed below, but objects to the Claimant inspecting them because they are by their nature privileged from production.”
In light of the decision, the wording may have to be extended to:
“… the documents are memoranda, reports and documents relating solely to the preparation of the Claimant’s case when litigation was contemplated or pending, or the same having been prepared, and were sent or received for the purpose of obtaining, furnishing or discussing information and/or evidence relating to or for the purpose of litigation. They are therefore privileged from production.”
It is unusual for a court to order further evidence in relation to a claim for privilege. However, the court may do so where it considers a claim to privilege has been unsatisfactory.
Evidence about the scope of a claim to privilege should be given by a proper officer of the parties, rather than its solicitors.
Courts are alert to applications that seek to challenge privilege, which are made simply to harass the opponent.
In addition to attendance notes, parties should exercise caution in respect of wider internal correspondence. For example, internal communications for the purpose of preparing a request for legal advice may not be privileged. Board minutes which summarise or attach a copy of legal advice are likely to be privileged, but privilege may be lost where the meeting discusses the advice or its implications.
