Anan Kasei Company Ltd v Neo Chemicals & Oxides (Europe) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mellor |
| Judgment Date | 06 December 2021 |
| Neutral Citation | [2021] EWHC 3295 (Pat) |
| Docket Number | Case No: HP-2016-000018 |
| Year | 2021 |
| Court | Chancery Division (Patents Court) |
[2021] EWHC 3295 (Pat)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (CH D)
PATENTS COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane
London EC4A 1NL
THE HON Mr Justice Mellor
Case No: HP-2016-000018
Tom Mitcheson QC and Miles Copeland (instructed by Hogan Lovells International LLP) for the Claimants
Hugo Cuddigan QC and Adam Gamsa (instructed by Bird & Bird LLP) for the Defendants
Party B provided written representations from Baker & Mackenzie LLP
Hearing date: 29 th November 2021, further brief written submissions and decision on 30 th November, draft Judgment distributed 2 nd December 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON Mr Justice Mellor
Introduction
This is the second instalment of an ongoing dispute as to confidentiality which is concerned with what highly confidential material should be disclosed to a representative or representatives from the Defendants (‘Neo’) so as to ensure that Neo (via the chosen representative(s)) are able to participate in a meaningful way in the lead up to and in the trial of the inquiry as to damages that is due to start in late January 2022.
I heard argument on Monday 29 th November and received further submissions in writing on the morning of Tuesday 30 th November 2021. Because time was short, I provided my decision in writing to the parties at around lunchtime on that Tuesday, which included a reset timetable down to the start of trial. In the event, my decision on confidentiality is somewhat complicated, as I shall explain in this judgment.
The first instalment is detailed in my previous judgment from 22 nd October 2021 [2021] EWHC 2825 (Pat), delivered following the previous hearing which took place on 8 th October 2021, and provides important background.
However, rather than include many cross-references to paragraphs in my previous judgment, I think it better to make this judgment reasonably self-contained, not least because certain matters I related in that previous judgment need to be updated in the light of (a) the further progress in the inquiry and (b) additional information which I have identified in the course of this application, having had the benefit of the weekend before this hearing to read more fully into the materials. For this reason, some passages in this judgment are copied or adapted from my previous judgment.
Summary of events since the previous hearing
In broad outline, the parties exchanged their evidence of fact on the inquiry on 26th October 2021, and CEA Notices on 8 th November. Expert's reports in chief were due to be served on 19 th November 2021. On that day, Rhodia offered their expert report for exchange but Neo did not, the reason stemming from the confidentiality of information contained in two of Rhodia's witness statements and other information contained in Neo's expert's report.
The two Rhodia witness statements in question are from Dr Rohe and Dr Richards. Each contains a considerable amount of information designated EEO. Although neither I nor Rhodia have seen Neo's expert report, I have no doubt that it will contain a lot of information currently designated EEO.
So, on 19 th November 2021, the solicitors for Neo wrote explaining they were not in a position to serve the expert report because Neo's COO, Mr Kevin Morris, was not able to approve the report for service. On the same day, Neo issued an application seeking an extension of time of 5 days following the hearing of their application to have all EEO information disclosed to Mr Morris. In due course, Rhodia issued their own application which was concerned with various complaints about Neo's disclosure. Only one point on Rhodia's application remained to be argued at the hearing on 29 th November and in the event, the point was resolved through Neo giving an undertaking to elect within 7 days its position on the relevance (if any) of the manufacturing process(es) used to manufacture the development samples. Accordingly, nothing more needs to be said on Rhodia's application.
Although, on Neo's application, it was readily apparent that the key issue was what material should be disclosed to Mr Morris and on what terms, Mr Cuddigan QC for Neo insisted on arguing that the witness statements of Dr Rohe and Dr Richards had not been validly served because they were served in a form which Neo's solicitors could not show to Neo, that Rhodia had not applied for an extension of time nor relief from sanctions and therefore Rhodia could not rely on those witness statements at the trial of the inquiry.
At all material times throughout this action, Bird & Bird LLP have remained on the record as the solicitors for Neo and, in accordance with CPR 6.23(1), Neo gave the address of Bird & Bird LLP as the address at which Neo may be served with documents relating to this action. Accordingly, any documents to be served on Neo have been and are served on Bird & Bird LLP. Certainly, many documents have been served on Bird & Bird LLP in this action containing confidential information which could not (at the time of service) be shown in unredacted form to anyone at Neo, yet without complaint until now. There is no exception to CPR6.23 which disqualifies service of documents which contain confidential information which cannot be shown to the client. Mr Cuddigan's argument was a bad point.
Mr Cuddigan also argued that it was not open to Rhodia to argue about disclosure to Mr Morris because Rhodia had no application before the Court to establish a confidentiality regime for witness statements, experts reports or the trial and because the onus was on Rhodia to justify any confidentiality regime. The last point is uncontroversial: the earlier point is, in my view, misconceived. Confidentiality regimes (and this case is no exception) apply to specified information, whether it is contained in a document, in a witness statement, in an expert's report or in a trial bundle. It is therefore not necessary to establish a separate regime for each stage of an action, although it is necessary to pay attention to CPR 31.22 whenever material which is alleged to be confidential is deployed at a hearing.
With those points out of the way, I can turn to the principal issue which is, as I have indicated, whether all the information currently designated EEO should be disclosed to Mr Kevin Morris, as Neo contend.
On this, Mr Cuddigan sought to establish the following points from the authorities:
(a) That there was a distinction in principle between the types of confidentiality regime which the Court can order at an interim stage and the types of confidentiality regime which should be applied at trial.
(b) That the judgment of David Richards J in McKillen v Misland [2012] EWHC 1158 (Ch) (‘ McKillen’) established that (a) the Court had no jurisdiction to deny a party access to the evidence at trial or (b) that any such jurisdiction was so exceptional to be of largely theoretical interest only. I will refer to this as the ‘no jurisdiction’ contention.
(c) That it was only if I rejected both those propositions that reference could be made to the competing interests (i.e. of Rhodia, Neo and Party B).
It is relevant also to record some other important aspects of the position taken by Neo:
(a) First, that Neo is a small lean organisation such that there is no person other than Mr Kevin Morris who is suitable to have access to the EEO information in this inquiry.
(b) Second, that no conditions should be imposed in an attempt to preserve the confidentiality of the EEO material or prevent its misuse (whether deliberate or inadvertent) other than the undertakings already offered by Mr Morris.
(c) Third, that despite the advice contained in paragraph 57 of my previous judgment (where I acknowledged that I had put in place an interim solution and the matter would be likely to have to be reconsidered), the advice being that ‘ Neo's team would be well advised to bring concrete examples of the difficulties being experienced and proposals to limit the quantity of information which they wish to be disclosed to Mr Morris (or possibly some other representative of Neo)’, Neo produced no proposals to limit the quantity of information for disclosure to Mr Morris, nor did they nominate any other possible candidate. In other words, Neo are insisting that Mr Morris should have access to all the EEO information disclosed in this case – and apparently without regard to the relevance or importance of the information for the trial of this inquiry. I will refer to this as the ‘all EEO’ contention.
Finally, by way of setting the scene, it is relevant to have in mind the nature of the information in question. In this regard, I repeat paragraphs 32–40 of my previous judgment. The observations I made in those paragraphs continue to apply. Indeed, my further review of the EEO materials for this hearing reinforced those considerations, although, as will be seen later, I accept the general point that the protection required for particular information may reduce over time. I return to these points below.
From the above, it follows that Neo presented an unyielding position to the Court,...
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