The Secretary of State for Health and Another v Servier Laboratories Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] EWHC 366 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: HC-2011-000064, HC-2012-000189 & |
| Date | 26 February 2016 |
[2016] EWHC 366 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
Mr Justice Henderson
Case Nos: HC-2011-000064, HC-2012-000189 &
HC-2012-000188
Mr Paul Lasok QC, Mr Michael Edenborough QC, Mr David Drake and Mr Philip Woolfe (instructed by Peters & Peters Solicitors LLP) for the English Claimants
Mr Daniel Beard QC and Mr Julian Gregory (instructed by Reynolds Porter Chamberlain LLP) for the Scottish & Northern Ireland Claimants
Ms Leigh-Ann Mulcahy QC and Ms Laura Elizabeth John (instructed by Geldards LLP) for the Welsh Claimants
Ms Helen Davies QC and Ms Sarah Ford (instructed by Bristows LLP) for the Defendants
Hearing dates: 26 and 27 November 2015
Introduction
On 26 and 27 November 2015 I conducted a case management conference ("CMC") in three linked sets of proceedings in which the United Kingdom health authorities claim damages for alleged breaches of competition law against four pharmaceutical companies in the Servier group ("Servier"). I will refer to the three sets of proceedings as, respectively, the English proceedings, the Scottish/NI proceedings, and the Welsh proceedings, brought by the English claimants, the Scottish/NI claimants, and the Welsh claimants (collectively "the Claimants").
For a brief description of the nature of the proceedings, and their history down to July 2014, reference should be made to the judgment which I handed down on 31 July 2014 following the last CMC in the case which took place on 9 and 10 June 2014: see [2014] EWHC 2720 (Ch) at [1] to [10].
Since then, various developments have taken place which I can summarise as follows:
(i) Servier has appealed to the General Court of the European Union against the decision ("the Decision") which the European Commission ("the Commission") adopted on 9 July 2014. The appeal is comprehensive in its scope, and is unlikely to be heard before late 2017. If there were then a further appeal to the Court of Justice, it is likely that at least two further years would elapse before Servier's challenge to the Decision in the European Courts were finally determined. Realistically, therefore, it may well be 2020 or later when the present proceedings come to trial; and the earliest feasible date for a trial, even if there is no appeal to the Court of Justice, would probably be some time in 2018 or 2019.
(ii) Much of the material contained in the Decision was (and remains) highly confidential, either to Servier or to the numerous third parties who supplied information to the Commission. Arrangements therefore needed to be made for disclosure of the Decision into a confidentiality ring, on terms acceptable to the Commission, for the purposes of the present proceedings. To that end, I requested, and obtained, an opinion from the Commission on the terms of a draft confidentiality order, and a number of changes to it were then made in the light of the Commission's opinion dated 22 December 2014: see my judgment on the terms of the confidentiality order, [2015] EWHC 647 (Ch). The confidentiality order was eventually made on 4 March 2015, and has subsequently been amended in minor respects.
(iii) The Commission has since published a provisional non-confidential version of the Decision, running to some 800 pages. A definitive non-confidential version will follow in due course.
(iv) In my judgment of 31 July 2014 I dealt with disclosure at [36] to [39]. For the reasons which I there gave, I directed that Servier's disclosure should be limited in the first instance to a review of the documents held on the Commission's file. My decision was influenced by the then very recent release of the Decision, after the CMC in May 2014 but before I handed down my judgment.
It will help to place the matters I now have to deal with in context if I cite the main parts of my reasoning in those paragraphs of the July 2014 judgment:
"36. … It is also common ground that all the parties now need to take careful stock of their positions and pleaded cases in the light of the Decision, bearing in mind the determinative effect of matters which the Commission has now decided, at any rate as a matter of EU and domestic competition law. This process of review and reconsideration is likely to lead to both clarification and reduction of the issues in the three sets of proceedings, and this in turn will have a significant impact on disclosure.
37. In these circumstances, it seems to me that the balance now comes down firmly in favour of Servier's proposal, which is that Servier's disclosure should be limited in the first instance to a review of the documents held on the Commission's file. As I have already explained, this is a substantial archive which Bristows [ Servier's solicitors] estimate to contain around 30,000 pages, reflecting the extensive searches and enquiries carried out by the Commission in the course of its investigation. Furthermore, the review and giving of disclosure from this archive will itself be a major exercise, which is likely to occupy Servier's lawyers for several months …
38. There are three further points which encourage me to accept Servier's proposal at this stage. First, as Ms Manley emphasised more than once in her written evidence, Servier is not saying that its disclosure should necessarily be confined to the documents on the Commission's file, but only that in the interests of proportionality this exercise should be undertaken first. Secondly, the Scottish/NI claimants were content that matters should proceed in this way, even before the issue of the Decision. Thirdly, in at least one recent case of parallel EU and UK competition law proceedings, the English court has considered it appropriate to limit disclosure in the first instance to material already disclosed to the Commission: see Infederation Ltd v Google Ireland Ltd [2013] EWHC 2295 (Ch), [2014] 1 CMLR 13, at [37] to [38] per Roth J.
39. In the light of what I have said, I hope that the parties will now be able to agree a timetable for this first stage of the disclosure exercise, bearing in mind that it cannot start (so far as Servier is concerned) before 22 September 2014 at the earliest. Unless there are any other aspects of disclosure on which the parties consider it essential for me to give a ruling now, I think that further consideration of disclosure-related issues should be postponed until after the parties have fully digested the Decision and the issues have crystallised. Meanwhile, I emphasise the need for all parties, and Servier in particular, to take active steps to ensure that all potentially relevant documents are preserved."
By paragraph 6 of my consequential order dated 21 October 2014, Servier was directed to:
"give disclosure by list of such documents as are contained in the European Commission's files in the parallel Commission proceedings and fall within standard disclosure in accordance with CPR 31.6, and … simultaneously provide inspection by provision of copies."
After Servier had given disclosure in compliance, or purported compliance, with that order, disputes arose about the scope and nature of any further disclosure to be given by Servier. The parties set out their views in correspondence, and Servier proposed that the next CMC (which by then had been fixed for November 2015) should be postponed. In a ruling given on 23 July 2015, I said that there were real differences of principle between the parties about the further disclosure to be given by Servier, and that those differences needed to be resolved by the court at an early stage. I therefore refused to adjourn the forthcoming CMC, and directed the parties to exchange their proposals for further disclosure by Servier in accordance with a timetable which was embodied in an order of the same date. I also directed the Claimants to produce a draft list of issues, which the parties should endeavour to agree by 13 November 2015.
Servier set out its proposals for further disclosure in a letter dated 16 October 2015 to the English claimants' solicitors, Peters & Peters Solicitors LLP. After drawing attention to the extensive information-gathering exercise already conducted by the Commission, Servier said that the only further disclosure which it would be proportionate and reasonable for Servier to give at this stage would be to provide to the Claimants:
(a) those documents contained in the confidential schedule to the disclosure statement of Dr Alain Renaud dated 17 October 2006 in the Apotex proceedings; and
(b) further documents which Servier had disclosed in the Apotex proceedings in response to a Part 18 request and in correspondence between the parties.
The Apotex proceedings, in the English High Court and Court of Appeal, concerned a successful challenge by a generic manufacturer of Perindopril (Apotex) to the validity of European Patent EP 1 296 947 ("the 947 patent"), in case HC06C03050: see Servier v Apotex [2008] EWCA Civ 445.
The reasoning which led Servier to make this proposal was, briefly, as follows:
(a) To the extent that the Claimants' claims were premised on matters contained within the Decision, the Commission had "searched all relevant locations and identified...
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