Interdigital Technology Corporation and Others v Lenovo Group Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice Falk,Lord Justice Birss |
| Judgment Date | 30 January 2023 |
| Neutral Citation | [2023] EWCA Civ 57 |
| Docket Number | Case No: CA-2021-003431 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 57
Lord Justice Birss
Lord Justice Warby
and
Lady Justice Falk
Case No: CA-2021-003431
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
PATENTS COURT
HHJ Hacon (sitting as a High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Approved Judgment
This judgment was handed down remotely at 10.30am on 30 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
In this case there has been a breach of the embargo on disclosure of draft judgments. We have to decide what if any action to take.
This was an appeal from the judgment of HHJ Hacon after a trial at which the appellant (“Lenovo”) challenged the validity and essentiality of the patent EP (UK) 2 485 558, belonging to the respondent (“InterDigital”). This was the first of a series of technical trials and was known as “Trial A”. The judge held the patent to be valid and essential. Lenovo appealed. We heard the appeal on 14 and 15 December 2022. On Friday 13 January 2023 our judgments were circulated in draft following the practice set out in PD40E.
As the standard rubric at the top of the draft explained, the purpose of doing this is “to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and draft orders and to prepare themselves for the publication of the judgment”. The terms of the embargo are also set out in the standard rubric. This states that the draft is “confidential to the parties and their legal representatives”, that “neither the draft itself nor its substance may be disclosed to any other person or made public in any way”, and that “a breach of any of these obligations may be treated as a contempt of court.”
What happened here is this. The draft judgment was sent out in the early afternoon of Friday 13 th. It went in the first instance to the parties' Counsel, Counsel's clerks, and one representative of each of the solicitors' firms involved. Counsel's clerks then passed the draft on to two other solicitors at InterDigital's solicitors, Gowling WLG, Alexandra Brodie and Matt Hervey. They called three of their four key client contacts at InterDigital with a view to informing them of the outcome, noting the draft, embargoed nature of both the outcome and the substance of the judgment, and to say that they would be providing the draft embargoed judgment shortly by way of email. They spoke directly to two of the three (InterDigital's Chief Legal Officer and its Chief Licensing Officer). A voicemail was left for the third, Steve Akerley, who is Deputy General Counsel and Head of Intellectual Property and Litigation.
Shortly after 5pm UK time Mr Hervey circulated an email to these three, and to the fourth key contact, who was InterDigital's CEO. The email was titled “EMBARGOED Judgment – Trial A Judgment from the Court of Appeal”. It was marked privileged and confidential to the four addressees. The body of the email drew attention to the terms of the embargo, emphasising that the recipients must not share the judgment, the outcome, or any details about it with any other person who was not directly involved in one of the three legitimate activities specified in the embargo wording. The email added that the recipients should not share any hint of the outcome by their demeanour. The copy of the draft embargoed judgment that was attached to the email was password encrypted. The password was provided to the four addressees by separate email from Mr Hervey.
Thus far everything was done entirely properly.
The problem arose at the InterDigital end. Mr Akerley was taking a vacation day that Friday. When he received Mr Hervey's emails, shortly after midday EST, he was out of the office. He used his mobile device to read the emails. He had some experience of previous proceedings before the courts in this country and knew that the judgment was embargoed. But, as he explains it, “In my haste to see the outcome of the judgment, I did not review the substance of Mr Hervey's emails”. He therefore did not see the detail of what Mr Hervey had said. After quickly reading the judgment and seeing the outcome, Mr Akerley disclosed the outcome by email to InterDigital's external counsel, Mr Mike Levin of Wilson Sonsini Goodrich & Rosati (“Wilson Sonsini”). Mr Akerley's email was headed “Confidential – Trial A appeal decision”. It advised Mr Levin that he could tell the core team at Wilson Sonsini but the information was confidential and must not be shared publicly.
Mr Akerley did not pass on the draft judgment and did not appreciate that in disclosing the outcome to Mr Levin and his team in this way he was violating the embargo. He puts it this way: “Due to the close, cooperative nature of Gowling and Wilson Sonsini, and having not read Mr Hervey's covering email, I incorrectly had in mind that providing the outcome of the judgment to Mr Levin and his core team was not prohibited.” The reference to co-operation relates to the involvement of Wilson Sonsini in the global dispute with Lenovo and the fact that Mr Akerley views them as “co-counsel” with Gowling WLG.
Mr Levin forwarded Mr Akerley's email to five members of his “senior, core team” at Wilson Sonsini, repeating...
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