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Confidentiality and Commercial Litigation

The maintenance of confidentiality is often a vexed issue in commercial litigation and a case in which a pharmaceutical company was accused of breaching competition rules in respect of the marketing of a heart disease drug was no exception.

The company was being sued for damages by the national authorities of all four parts of the UK for alleged breaches of European antitrust laws. The European Commission had adopted a decision in relation to the matter which was stated to be confidential to the company.

The decision contained sensitive information, some of which had been obtained from, or concerned, third parties. However, it was agreed that all parties to the English litigation, as well as the High Court itself, required access to the decision in order to proceed with the matter fairly.

With that objective in mind, and following consultation with the Commission and hearing submissions from the parties, the Court overcame the difficulty by creating a  ‘confidentiality club’, members of which would have access to the unredacted version of the decision. Those members included lawyers involved in the case as well as government ministers and senior civil servants who had experience of handling and maintaining the integrity of confidential information.