Collateral purpose or collateral damage?

16 January 2019

The High Court’s ruling in Glaxo Wellcome UK Limited v Sandoz Limited provides a useful example of circumstances in which disclosed documents can be used other than in the proceedings in which they were disclosed, even if that may damage the disclosing party.

A key feature of litigation in England is that parties are required to disclose documents which are adverse to their own case or to their opponent’s. This requirement is not mirrored in many other European jurisdictions, where disclosure tends to be much more limited in scope.

In order to contain the potentially damaging effect which disclosing adverse documents could have and safeguard parties from collateral use of documents by their opponents, parties can generally only use such documents in the proceedings in which they are disclosed. However, courts can give permission for the use of disclosed documents for a collateral purpose where there are special circumstances and either injustice will not be caused to the party giving disclosure or any injustice is outweighed by the interests of justice in allowing the collateral use.

In Glaxo Wellcome UK Limited and others v Sandoz Limited and others[1] the Claimant wished to use certain documents disclosed by its opponents in English proceedings to:

  1. obtain legal advice in Belgium as to whether the documents should be adduced in evidence in existing Belgian proceedings;
  2. obtain legal advice in Belgium as to whether the documents could be used to bring any new claims; and
  3. use the documents for the above purposes if legal advice was given in the affirmative.

The Court ruled that the Claimant should have permission to use the documents as requested, save for certain documents which were unlikely to be relevant to these purposes.

The following were important factors in favour of allowing the collateral use:

  1. It could not be said that the English proceedings had been brought for the principal purpose of obtaining disclosure and using it elsewhere.
  2. Use of documents in Belgian legal proceedings meant there were built-in safeguards, unlike with other collateral purposes such as use by the press.
  3. The Court could presume (as with all Council of Europe states) that the Belgian Court would adopt a procedure which was fair to all the parties.
  4. The Court must presume that the Belgian lawyers from whom advice would be sought would act as a professional filter and ensure the Court’s process was not abused.

The Court’s concluding point will be of particular interest to litigants: a potential reduction in the prospects of success of a disclosing party as a result of the use of their documents for a collateral purpose is immaterial – it may even weigh in favour of granting permission for that use.

[1] Glaxo Wellcome UK Limited and others v Sandoz Limited and others [2018] EWHC 3229 (Ch)