HT-2022-000043, HT-2022-000363 - [2024] EWHC 1708 (TCC)

Mr Bowsher KC relied upon a range of indications that Santé is to be treated, on the balance of the evidence, as having practical control over the documents held by Bio and Boson which are responsive to the categories of disclosure which have been ordered in this case. I summarise the more important of these as follows.

First, undertakings have been made whereby Bio and Boson have committed to providing Santé with assistance in terms which are applicable to the claim. Clause 6.14(a) of the contract between Santé and Bio states:

There is a similar clause in a letter written by Boson to Bio which has been described by the Claimants as the contract between Bio and Boson. §13 of that document contains an undertaking, given expressly both for Bio’s benefit and for Santé’s benefit:

The Claimants do not deny that these clauses (“contractual assistance clauses”) are apt to cover the current dispute between them and the Defendant, which concerns whether the production of “the Goods” is or was in accordance with the contract between them and the Defendant. Whilst the clauses do not refer in terms to documents, Ms Hannaford did not dispute that the wording of the clauses is sufficiently broad as to cover the provision of documents which are necessary for the resolution of a dispute regarding whether or not “the Goods” are in accordance with the contract. Whilst Mr Bowsher does not rely upon these clauses as establishing an enforceable legal right of access to the documents in question, not least because the Defendant remains unsure as to whether it has received all of the relevant contractual documents, he does rely upon them as providing a firm foundation for the de facto control for which he argues.

Second, Mr Bowsher submits that, both prior to and for the purposes of these proceedings, there has in fact already been extensive provision of documentation to Santé from Bio and/or Boson, consistent with the effect of the contractual assistance clauses. In particular:

Third, Boson has provided and will continue to provide other forms of assistance to the Claimants in prosecuting their claim, including by making available employees to give evidence on behalf of the Claimants at trial. Indeed, Mr Bowsher asks me to infer that Boson has a strong interest and perhaps even a direct financial interest in the Claimants’ success. There is no direct evidence of the latter, although I can accept that it would likely be in Boson’s commercial interests to “clear its name” of the allegations made by the Defendant and of the fact of the Claimants’ contract with the Defendant having been terminated for breach of contract on account of Boson’s conduct (something which may have to be disclosed, and may prejudice Boson, in other tender processes). It is also undoubtedly correct that prior to and upon commencement of the claim, the Claimants and Boson were presenting a united front in opposition to the Defendant’s allegations, and that a number of averments made by the Claimants in their Statements of Case must have been based upon information provided to them by Boson.

Fourth, although the Claimants claim that there was no contractual relationship between Santé and Boson, Mr Bowsher pointed to a number of indications that Santé has been in direct contact with Boson and enjoyed significant power in that relationship. For example, in July 2021, and before the Defendant awarded the contract to the Claimants, Santé commissioned an audit of Boson’s premises by a firm called Intertek. A further audit was commissioned by Santé, by a firm called V-Trust, after the QIMA audit. The Claimants do not dispute that the Intertek and V-Trust auditors were given access to Boson’s documents for the purposes of conducting their audits. As already noted, Boson gave undertakings for the benefit of Santé as well as Bio and these included a right for an employee of Santé (not Bio) to be located on Boson’s premises to monitor production of the test kits and compliance by Boson with its various obligations.

Fifth, Mr Bowsher emphasised the unfairness of the position if the Claimants were able to produce and rely upon documentation originating from Boson which was helpful to them, whilst not being subject to any obligations in relation to other documentation held by Boson which might undermine their case. Or, put another way, it would be unfair if the Claimants were able to rely upon the contractual assistance clauses to their advantage but without risking any disadvantage in terms of the documents provided by Boson. I should say that the Claimants had in fact offered to make requests to Boson which were formulated by the Defendant but this offer was not accepted, in part because the Claimants would not accept that they had any disclosure obligations in relation to Boson’s documents and in part also because of the difficulties which the Defendant perceived in making specific requests for documents without knowing enough about the universe of documents held by Boson.

For her part, Ms Hannaford for the Claimants emphasised the following points: