Salts Healthcare Limited v Pelican Healthcare Limited
[2024] EWHC 1539 (Pat)
SafeStand Limited v Weston Homes PLC & Ors.
10 May 2023
[2023] EWHC 1098 (Pat)
High Court
A company sued another for copying its design. The defending company did some tests to prove they didn't copy, but the judge said they didn't show all their test results. The judge ordered the company to show more tests to be fair. It was like a science experiment where showing only the 'good' parts of the results is not fair; all the results need to be shown.
Key Facts
- •Safestand Limited (Claimant) sued Weston Homes PLC, Weston (Logistics) Limited, and Weston Group PLC (Defendants) for patent and registered design right infringement.
- •The Defendants counterclaimed for revocation of the patents and design rights, asserting invalidity, non-infringement, and a Formstein defence.
- •Two applications were heard: (i) Defendants' application for permission to rely on experiments (Experiments 1-3) detailed in their Re-Amended Notice of Experiments (ANOE), and (ii) Claimant's application for specific disclosure of documents and data relating to the experiments.
- •The Experiments compared the performance of the Defendants' Kwik Kage System (KKS) with standard trestles regarding longitudinal stability.
- •The Claimant's application is a ‘Mayne Pharma’ style disclosure application, seeking underlying data from experiments that are related to those the Defendants are relying upon in court.
Legal Principles
Legal professional privilege is a fundamental right, but it can be waived.
Various cases, including Three Rivers District Council v Bank of England (No. 6) [2004] UKHL 48 and Magnesium Elektron Limited v Neo Chemicals & Oxides (Europe) Ltd (No.2) [2017] EWHC 2957 (Pat)
Collateral waiver: Voluntary disclosure of privileged material may waive privilege in other related material to avoid unfairness or misunderstanding. The scope of waiver depends on the 'transaction' or 'issue' in question.
Nea Karteria Maritime Co v Atlantic & Great Lakes Steamship Corporation [1991] ComLR 138 and Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35
Mayne Pharma disclosure: Reliance on experiments in a Notice of Experiments waives privilege in related 'work-up' experiments.
Mayne Pharma Pty Ltd v Debiopharm SA [2006] EWHC 164 (Pat) and Magnesium Elektron Limited v Neo Chemicals & Oxides (Europe) Ltd (No.2) [2017] EWHC 2957 (Pat)
CPR Part 18 requests for information, Part 35 expert questioning, and statements of case can help clarify issues and assist in the assessment of waiver and disclosure.
Magnesium Elektron Limited v Neo Chemicals & Oxides (Europe) Ltd (No.2) [2017] EWHC 2957 (Pat)
PD57AD governs disclosure in the Business and Property Courts, including specific disclosure orders in patent cases, requiring proportionality and necessity.
PD57AD
Outcomes
The Defendants' application to rely on Experiments 1-3 was granted.
The experiments were foreshadowed, witnessed, and addressed in expert reports. The Claimant did not oppose.
The Claimant's application for specific disclosure of certain experimental data was granted in part.
The Court found that the Defendants' reliance on the ANOE implicitly waived privilege in related experiments concerning longitudinal stability, as the deployment risked creating unfairness by partial disclosure and misunderstanding of the results. Disclosure was deemed necessary for a just disposal of the case and proportionate.
The Defendants were ordered to provide an unredacted version of the NRFIS report, removing redactions of non-confidential, irrelevant material, with appropriately detailed explanations for any remaining redactions.
Compliance with PD57AD 16 regarding redactions was deemed proportionate.