Key Facts
- •Saint-Gobain Adfors S.A.S (SG) and 3M Innovative Properties Company (3M) had cross-applications concerning the use of electronic documents, the CT Scan Files, containing data from analysis of Rowenhorst particles.
- •The CT Scan Files were provided to SG by 3M subject to confidentiality under CPR 31.22.
- •SG used the CT Scan Files and derived data in EPO opposition proceedings against 3M patents.
- •3M argued the CT Scan Files should be subject to CPR 31.22(2) restricting their use.
- •SG argued the CT Scan Files were 'referred to' at trial under CPR 31.22(1)(a), thus removing confidentiality restrictions.
Legal Principles
CPR 31.22(1)(a): A disclosed document can be used outside the proceedings if it was read to or by the court, or referred to, at a public hearing.
CPR 31.22(1)(a)
CPR 31.22(2): The court may restrict or prohibit use of a disclosed document, even if it was read to or referred to at a public hearing.
CPR 31.22(2)
The test under CPR 31.22(2) requires ‘very good reasons’ to override open justice principles. The centrality of the document to the trial is a key factor.
Lilly Icos Ltd v Pfizer Ltd (No. 2) [2002] EWCA Civ 2
Promptness in making applications under CPR 31.22(2) is important, considering potential prejudice to the respondent.
Tibbles v SIG plc [2012] EWCA Civ 518
Outcomes
CPR 31.22(1)(a) applies; the CT Scan Files were 'referred to' at trial.
The court found multiple instances where the CT Scan Files were explicitly mentioned or implicitly referred to during trial, regardless of whether their contents were paraphrased.
No order under CPR 31.22(2) will be made to restrict the use of the CT Scan Files.
The court found that 3M’s delay in applying for the order, combined with SG's legitimate reliance on the lack of restriction for 19 months, and the limited potential harm to 3M, did not justify restricting SG’s use. The costs to 3M in responding to SG’s submissions are not sufficient grounds.
SG is granted declarations clarifying its right to use the CT Scan Files, subject to a 21-day notice undertaking to 3M.
This addresses 3M’s concerns regarding potential future use while respecting SG’s legitimate use of the files.