Apotex Pty Ltd v Les Laboratoires Servier (No 5)

Apotex Pty Ltd brought an interlocutory application in the Federal Court of Australia to challenge the assertion of privilege over six letters exchanged between the parties as part of settlement negotiations. The primary issue was whether the letters were privileged under section 131 of the Evidence Act, which excludes evidence of settlement negotiations, and whether the non-disclosure of one particular letter was likely to mislead the Court. The court considered whether the substance of the communications had been disclosed and whether the non-disclosure was likely to mislead the Court.

The Federal Court concluded that the six letters were part of an attempt to negotiate a settlement of the dispute, and thus fell within section 131(1) of the Evidence Act. The court rejected Apotex's submission that the letters did not form part of a settlement negotiation. Furthermore, the court found that the letter dated 23 September 2011 did not fall within either section 131(2)(b) or (g) of the Evidence Act, as the substance of the evidence had not been disclosed with the consent of all parties, and the non-disclosure was not likely to mislead the Court.

As a result, the Court made orders prohibiting Apotex from adducing evidence of the specified letters at the interlocutory hearing and reserved the costs of the Interlocutory Application. The court also recognised the importance of preserving the confidentiality of previous transcripts and the identities of the proposed additional Cross-Respondents.