Roche Diagnostics LTD against Greater Glasgow Health Board and Abbott Laboratories LTD (Court of Session) [2024] CSOH 90 (20 September 2024)

Roche Diagnostics LTD against Greater Glasgow Health Board and Abbott Laboratories LTD (Court of Session) [2024] CSOH 90 (20 September 2024)

The first defender, by disclosing documents containing detailed legal advice, objectively waived privilege over that advice and cannot resist further disclosure of related legal advice. Scots law does not recognise 'without prejudice' privilege as a bar to document production; such privilege may be asserted at the stage of admissibility, not recovery, and clear admissions of fact may be admissible even if made 'without prejudice'.

Citation
[2024] CSOH 90
Parties
Pursuer: Roche Diagnostics Limited; First Defender: Greater Glasgow Health Board; Second Defender: Abbott Laboratories Limited
Jurisdiction
Scotland
Judgment Date
20 September 2024
Procedural Posture
Commercial Action (public Procurement Dispute) / Interlocutory Ruling on Document Disclosure and Privilege
Outcome
Interlocutory ruling; case put out by order for further procedure.
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Without Prejudice Privilege, Document Disclosure, Admissibility of Evidence
Public Procurement Civil Procedure Evidence Legal Professional Privilege Waiver of Privilege Without Prejudice Privilege Document Disclosure Admissibility of Evidence

Case Brief

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Parties

Roche Diagnostics Limited

Pursuer

Greater Glasgow Health Board

First Defender

Abbott Laboratories Limited

Second Defender

Procedural Posture

Commercial Action (public Procurement Dispute) / Interlocutory Ruling on Document Disclosure and Privilege

Legal Issues

  1. 1 Whether the first defender waived legal professional privilege by disclosing documents summarising legal advice
  2. 2 Whether 'without prejudice' privilege under Scots law bars production of documents in response to a specification of documents

Ratio Decidendi

The first defender, by disclosing documents containing detailed legal advice, objectively waived privilege over that advice and cannot resist further disclosure of related legal advice. Scots law does not recognise 'without prejudice' privilege as a bar to document production; such privilege may be asserted at the stage of admissibility, not recovery, and clear admissions of fact may be admissible even if made 'without prejudice'.

Court Disposition

Interlocutory ruling; case put out by order for further procedure.

Orders

  • First defender deemed to have waived privilege over legal advice detailed in disclosed documents.
  • Commissioner to review documentation for further disclosure consistent with waiver, subject to further submissions.