The Secretary of State for Health and Others v Servier Laboratories Ltd and Others

JurisdictionEngland & Wales
JudgeLord Justice Rimer,Lord Justice Beatson,Lord Justice Laws
Judgment Date22 October 2013
Neutral Citation[2013] EWCA Civ 1234
Docket NumberCase Nos: A3/2012/2914, A3/2013/1034 & A3/2013/1035
CourtCourt of Appeal (Civil Division)
Date22 October 2013
Between:
(1) The Secretary of State for Health and Others
Claimants/Respondents
and
(1) Servier Laboratories Limited and Others
Defendants/Appellants
And Between:
National Grid Electricity Transmission Plc
Claimant/ Respondent
and
(1) Abb Limited and Others
Defendants/ Appellants

[2013] EWCA Civ 1234

Before:

Lord Justice Laws

Lord Justice Rimer

and

Lord Justice Beatson

Case Nos: A3/2012/2914, A3/2013/1034 & A3/2013/1035

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Mr Justice Henderson and Mr Justice Roth

[2012] EWHC 2761 (Ch), [2012] EWHC 3663 (Ch) & [2013] EWHC 822 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Nicholas Green QC and Ms Kelyn Bacon (instructed by Bristows) for the Appellants, Les Laboratoires Servier SAS and Servier SAS

Mr Paul Lasok QC and Mr David Drake (instructed by Peters & Peters) for the Respondents, The Secretary of State for Health and Others

Mr Stephen Morris QC and Ms Maya Lester (instructed by Hogan Lovells International LLP) for the Appellants, Alstom, Alstom Holdings and Alstom Grid SAS

Mr Stephen Morris QC and Ms Maya Lester (instructed by Shearman & Sterling LLP) for the Appellant, Areva SA

Mr Jon Turner QC and Ms Laura Elizabeth John (instructed by Berwin Leighton Paisner LLP) for the Respondent, National Grid Electricity Transmission Plc

Hearing dates: 2, 3 May and 25 June 2013

Approved Judgment

Lord Justice Rimer

Introduction

1

This judgment is on three appeals against interlocutory orders made in two separate claims proceeding in the Chancery Division, the parties in each claim being unrelated to those in the other. In one claim, the appeal is against an order of Henderson J made on 12 October 2012. In the other, the two appeals are against an order of Roth J made on 11 April 2013.

2

All three appeals raise similar questions. Ideally, they should have been heard together. Unfortunately, the court's listing commitments did not enable a joint hearing to be arranged with sufficient expedition. The result was that the court heard the argument on the first appeal (the Servier appeal) on 2 and 3 May 2013 and the argument on the two other appeals (the Alstom appeals) on 25 June 2013. The parties to the Alstom appeals had access to the transcripts of the argument in the Servier appeal, and the court reminded counsel in that appeal of their right to attend the Alstom appeals, as they did, and informed them that, at the conclusion of the arguments in them, they could make brief submissions in response to such arguments, as they also did. The arrangements were not perfect, but they were the best the court could offer and I consider that no party can fairly claim it was not aware of the arguments advanced by other parties or did not have an opportunity to address them.

3

Henderson J's order in the Servier claim required the defendant/appellants to serve a response to the claimant/respondents' request for further information. The order was made pursuant to CPR Part 18. Roth J's order in the Alstom claim required the defendant/appellants to give disclosure under specified heads and was made pursuant to CPR Part 31. Each appellant objects to the orders against it on the ground that it claims that compliance will put it in breach of a French statute of 1968, as amended in 1980, and expose it to a risk of criminal prosecution in France. The statute is usually referred to as 'the French blocking statute'. Each appellant argues that, because of the risk of prosecution, the orders should not have been made and it asks this court to set them aside. They say they should only be required to respond to requests for further information or for disclosure made pursuant to the procedure provided by Council Regulation (EC) No. 1206/2001 of 28 May 2001, a route down which neither judge was prepared to travel. Roth J did, as I shall explain, originally sanction such a procedure, but it received a prompt rebuff from the French Ministry of Justice, which said that it was unnecessary to use it, and the end result was that he simply made conventional disclosure orders.

4

In what follows, I shall (i) set out the French blocking statute; (ii) set out the material parts of Regulation 1206/2001; (iii) summarise the issues in the Servier claim; (iv) explain Henderson J's reasons for ordering the provision of the information and describe certain events that followed his order; (v) summarise the issues in the Alstom claim; (vi) explain Roth J's reasons for ordering the disclosure; (vii) explain the arguments on the appeals; and (viii) express my conclusions.

The French Blocking Statute

5

Article 1 bis of the French Statute No 68–678 of 26 July 1968, as modified by the French Statute No 80–538 of 16 July 1980, provides:

'Sous réserve des traités ou accords internationaux et des lois et règlements en vigueur, il est interdit à toute personne de demander, de rechercher ou de communiquer, par écrit, oralement or sous toute autre forme, des documents ou renseignements d'ordre économique, commercial, industriel, financier, ou technique tendant à la constitution de preuves en vue de procédures judiciaires ou administratives étrangères ou dans le cadre de celles-ci.'

6

The agreed English translation reads:

'Subject to international treaties or agreements and applicable laws and regulations, any individual is prohibited from requesting, seeking or disclosing, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature, with a view to establishing evidence in foreign judicial or administrative proceedings or in relation thereto.'

7

The scope of this statute is apparently extremely broad. It applies both to those requesting and to those providing material of the proscribed nature. Article 3 imposes criminal sanctions for breach, being a maximum of six months' imprisonment and/or a fine of up to €18,000 (€90,000 for legal entities). It is agreed that the words 'toute personne', translated as 'any individual', extend to both natural and legal persons. We were told that the statute was introduced in response to what were viewed as the extravagant excesses of discovery processes in American anti-trust claims. By way of diluting any suggestion that the blocking statute is a unique piece of French protectionism, Mr Green QC, for the Servier appellants, pointed out that legislation of a like, though manifestly more limited, nature is to be found in section 2 of the United Kingdom's Protection of Trading Interests Act 1980. The comparison was unhelpful. The purpose and limits of the latter provision are expressly clear from its terms. The like cannot be said of the French blocking statute.

Council Regulation (EC) No 1206/2001 of 28 May 2001

8

This Regulation ('Regulation 1206'), described as being 'on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters', has applied throughout the European Union (save for Denmark) since 1 January 2004. It provides a procedure for taking evidence in another Member State in civil and commercial matters and is also referred to as 'the Evidence Regulation'. It is said by the appellants to provide the procedure that not only can, but must, be adopted in cases such as the present, when compliance with a direct order of the English court for the production of information or for disclosure will incur a risk of prosecution under the French blocking statute. The regulation was said by Mr Green to have been intended to be 'a supercharged version of the Hague Convention', upon which it is said to have improved in several ways.

9

The regulation needs to be read in conjunction with a Practice Guide ('the Guide') drawn up by the Commission Services in consultation with the European Judicial Network in Civil and Commercial Matters. The Guide explains, in paragraph 2, that before 2004 there was no binding instrument between all Member States concerning the taking of evidence and that the regulation 'lays down procedural rules to make it easier to take evidence in another Member State'. Paragraph 4 explains that the primary objective of the regulation is that requests for the taking of evidence are executed expeditiously. Paragraph 8 notes that the regulation does not define the concept of 'evidence' but says that it 'includes for instance hearings of witnesses of fact, of the parties, of experts, the production of documents, verifications, establishment of facts, expertise on family or child welfare'. Henderson J expressed reservations as to whether the regulation could be said to apply to the making of requests for information; and Roth J was of the view that the regulation was not concerned with the achieving of disclosure as between the parties to litigation.

10

Turning to the regulation, recital (2) in the preamble states that 'for the purpose of the proper functioning of the internal market, cooperation between courts in the taking of evidence should be improved, and in particular simplified and accelerated'. Recital (5) states that such improvement could not be sufficiently achieved by the Member States and could therefore be better achieved at Community (now EU) level. Recital (6) states that there was, to date, no binding instrument between all the Member States concerning the taking of evidence and it notes that the Hague Convention of 18 March 1970 applied between only 11 Member States. Recital (7) states that as it was often essential for a decision in a civil or commercial matter pending before a court in a Member State 'to take evidence in another Member State', it...

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