Clinisupplies Ltd v Karen Park and Others
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Arnold,Mr Justice Arnold |
| Judgment Date | 05 December 2012 |
| Neutral Citation | [2012] EWHC 3453 (Ch) |
| Docket Number | Case No: HC12B01763 |
| Court | Chancery Division |
| Date | 05 December 2012 |
[2012] EWHC 3453 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case No: HC12B01763
Nicholas Craig (instructed by Cromwells) for the Claimant
Henry Ward (instructed by Collyer Bristow LLP) for the Second and Third Defendants
The First Defendant did not appear and was not represented
Hearing date: 28 November 2012
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.
Introduction
There are two applications before the Court. The first is an application by the Second and Third Defendants ("Richardson" and "Mr Patel" respectively) to strike out part of the Claimant's claim alternatively for summary judgment dismissing that part. The second is an application by the Claimant ("CliniSupplies") to amend its Particulars of Claim. Since the latter application was launched, CliniSupplies has proposed additional amendments. I shall consider the final draft supplied by counsel for CliniSupplies with his skeleton argument. The application to amend is not resisted save on the basis that the amendments do not provide an answer to Richardson and Mr Patel's application. The First Defendant ("Ms Park") has not participated in these applications, but has agreed to be bound by the outcome.
By their application Richardson and Mr Patel originally sought to strike out two parts of CliniSupplies' claim. The first was the entirety of CliniSupplies' claims for infringement of United Kingdom design right and Community design right. The day before the hearing, however, CliniSupplies confined this claim to UK design right. The second was CliniSupplies' claim for an injunction to restrain the continued production and marketing of Richardson's Cath-It product on the ground of breach of confidence. During the course of his submissions, however, counsel for CliniSupplies abandoned this claim. Accordingly it is only necessary for me to consider the claim for infringement of UK design right.
Background
CliniSupplies is a medical devices company which manufactures and markets products for the primary and secondary healthcare sectors. It claims to be a leading supplier of urology products and wound and skin management products. One of its products is a combined urinary catheter removal and insertion procedure pack for use in clinics or the community which it markets under the brand name Vesica (there is also a variant for hospital use, but that can be ignored for present purposes). A "procedure pack" is a pack of equipment for use in a particular medical procedure.
Approximately 30% of patients undergoing hospital treatment in the United Kingdom have a urinary catheter inserted at some point in their treatment. Catheter-associated urinary tract infection ("CAUTI") is by some margin the most commonly reported type of healthcare-associated infection in the UK. One of the main purposes of the Vesica is to help reduce CAUTIs.
In early 2009 CliniSupplies assembled a "focus group" of experts to assist it to develop what became the Vesica. This consisted of Thomas Ladds (formerly a Urology Nurse Specialist at Manchester Royal Infirmary and now a freelance consultant), Rose Moran (Continence Advisor, Wigan and Leigh), Diane McNicoll (Continence Advisor, Trafford Primary Care Trust), Courtney Bickerdike (Elderly Care Matron, Blackpool Victoria Hospital) and Steve Duffin (Urology Nurse Specialist). Chris Portis of CliniSupplies attended the focus group's meetings. The focus group started work in about April 2009. It is CliniSupplies' case that a key aspect of the focus group's work was to ensure that the design of the Vesica accorded with best practice aseptic non touch techniques.
Aseptic Non Touch Technique or ANTT is a practice framework for aseptic technique originated by Stephen Rowley, Clinical Director of the Association for Safe Aseptic Practice ("ASAP"). It is common ground that ASAP has been publishing ANTT guidelines in general and for specific medical procedures since about 1995. Since about 2003 ANTT has been widely adopted by healthcare organisations including the National Health Service. ASAP provides ANTT guidelines free to healthcare organisations. It also publishes them on the ANTT website located at www.antt.org.uk.
It does not appear to be in dispute that ASAP started development of an ANTT Urinary Catheterisation Guideline in May 2009. It is common ground that Mr Ladds contacted Mr Rowley in late October 2009, and thereafter there was an exchange of information between them. Mr Ladds sent Mr Rowley copies of two earlier guidelines on catheterisation and some information about urinary infection, while Mr Rowley gave his opinion about the product which CliniSupplies was developing.
Version 1 of the ANTT Urinary Catheterisation Guideline was completed in March 2010, when it was disseminated for peer review. It was published in October 2010, when it was publicised in an article in Nursing Management which reproduced part of the Guideline. A slightly revised version was reproduced in full in Urology News in September 2011.
CliniSupplies organised a marketing launch for the Vesica at Old Trafford football ground on 9 September 2010 at which Mr Rowley spoke. The Vesica went on sale on 1 May 2011.
Ms Park was employed by CliniSupplies from 17 May 2010 to 24 July 2011 as a product development manager. There is a dispute as to how senior a role this was, but it is common ground that she was involved with the development of the Vesica. Prior to her employment by CliniSupplies, Ms Park was employed by another medical products company, Rocialle, from May 2007 to May 2010. Ms Park resigned from CliniSupplies on 24 June 2011, giving one month's notice. Accordingly her employment ended on 24 July 2001, but she was on leave from 14 to 24 July 2011. Prior to going on leave, she returned her company laptop on 13 July 2011. On 1 August 2011 she commenced employment with Richardson, but did not actually start work until 22 August 2011.
Richardson is a supplier of medical surgical products. It claims to be the leading supplier of procedure packs both to the NHS and to the prescription market. Mr Patel is Richardson's managing director. In about February 2012 Richardson launched a combined urinary catheter removal and insertion procedure pack which it markets under the brand name Cath-It.
CliniSupplies alleges that the Cath-It was copied from the Vesica. Richardson claims to have commenced development of the Cath-It in mid 2008, and to have taken into account the ANTT and other guidelines when deciding what items to include and in what order. Richardson denies that the Cath-It was copied from the Vesica, but it is not clear to me whether it claims to have been wholly uninfluenced by the Vesica.
CliniSupplies also alleges that, in developing the Cath-It, Richardson misused information confidential to CliniSupplies which Ms Park disclosed to Richardson in breach of express or implied contractual obligations of confidence and good faith and fidelity and of fiduciary duties. It also alleges that Richardson and Mr Patel have participated in an unlawful means conspiracy with Ms Park. Ms Park, Richardson and Mr Patel all deny any misuse of confidential information.
The claim has had a slightly unfortunate procedural history. CliniSupplies' solicitors sent Richardson a letter before action on 5 March 2012. After correspondence between CliniSupplies' solicitors, Richardson, Richardson's patent attorney and Richardson's solicitors, the Claim Form was issued on 30 April 2012. The Particulars of Claim were served on 9 May 2012. On 17 June 2012 CliniSupplies alleges that it found certain emails on Ms Park's laptop dating from March – July 2011 evidencing misuse of confidential information by her. On the basis of this evidence CliniSupplies applied without notice for interim injunctions against the Defendants on 22 June 2012. Mann J granted relief against Ms Park, but not against Richardson or Mr Patel. Subsequently CliniSupplies applied for more extensive relief against Ms Park and Ms Park applied to discharge Mann J's order. Following a hearing on 22–24 August 2012 Mark Herbert QC sitting as a Deputy High Court Judge discharged the injunction granted by Mann J and declined to grant CliniSupplies the further relief it sought, albeit on the basis of certain undertakings given by Ms Park and her solicitors, for reasons given in his judgment dated 14 November 2012 ( [2012] EWHC 3209 (Ch)).
The Vesica
The Vesica comes in a clear polyethylene bag shaped like a large envelope. The bag is rectangular in plan, with approximate dimensions of 37 cm (including the seal at the closed end) x 27 cm. When full, the bag is very roughly 7 cm thick at the thickest point. The bag carries a white adhesive label on its top surface measuring approximately 13.5 cm x 6.5 cm. This label has the brand name and other information printed on it. The bag is closed at one end by means of a flap covered with white paper, measuring approximately 11.5 cm x 27 cm. This is adhesively sealed, again rather like the flap of an envelope, so that the user can peel it back in order to open the bag and extract the contents. The bag contains an instruction leaflet, a catheter removal pack and a catheter insertion pack loose within it. When the bag is the correct way up (i.e. labelled side up), the removal pack lies on top of the insertion pack. The leaflet may lie either on top of both packs or underneath both packs. The bag also has a clear 25 ml sachet of saline...
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