Lilly Icos Ltd v Pfizer Ltd (2)

Under CPR 31.22, disclosure for use at trial does not automatically end confidentiality after proceedings. The court must balance the strong principle of publicity against the specific confidentiality interests asserted. Relevant considerations include the document’s role and importance in the trial, the need to avoid chilling disclosure, and specific evidence of commercial harm. General assertions of confidentiality are insufficient. The court may adopt a less demanding approach where the document played only a limited or incidental role and was not needed to understand the issues or assess the decision. The necessity test derived from closed hearings under Scott v Scott is not directly transferable to post-trial restrictions on the use of disclosed documents.

The appeal arose from patent revocation proceedings in the Chancery Division before Laddie J. The patentee had disclosed a confidential schedule containing sales information and advertising and promotional expenditure. After trial, the judge declined to continue confidentiality over the advertising figures under CPR 31.22(2), although the opponent did not oppose continued protection.

The figures had been prepared for possible use in addressing commercial success as evidence of non-obviousness, but the opponent did not ultimately rely on promotional expenditure. The Court of Appeal considered whether the figures had been referred to at a public hearing within CPR 31.22(1)(a), and what approach should govern an application to restrict their subsequent use.

1. The main appeal was dismissed and the second appeal was allowed in part. An order was made under CPR 31.22(2) maintaining confidentiality over page 2 of the patentee’s confidential schedule, containing advertising and promotional expenditure.
2. CPR 31.22 concerns the subsequent use of disclosed documents. The fact that a document has been read or referred to at a public hearing ordinarily releases the normal restriction, but the court retains power under CPR 31.22(2) to restrict or prohibit use.
3. The court must start from the strong principle of publicity. It should consider the document’s role in the trial and assume that disclosed documents are relevant to public scrutiny, while recognising that the document’s centrality is a factor in the balance. The court must also consider possible chilling effects on disclosure and require specific evidence of the damage publication would cause. Mere assertions of confidentiality, even if supported by both parties, are insufficient.
4. The extended approach in Smithkline Beecham v Connaught applies where documents were pre-read by the judge or specifically brought to the court’s attention, even if not physically read aloud. It does not extend to every document in a court bundle. A document referred to only incidentally may fall within the rule, yet its limited role may justify continued confidentiality.
5. The necessity language in Scott v Scott concerns excluding the public so that an action can be heard at all. It cannot be directly transposed into the different question of limited confidentiality after disclosure.
6. Page 2 had played only a very limited role. It was not used in argument about the patent’s validity and was unnecessary for spectators to understand the case. Evidence established that advertising figures were regarded in the pharmaceutical industry as highly commercially sensitive. That justified confidentiality in this case, without establishing a general rule that advertising expenditure figures must always remain confidential.

Permission to appeal to the House of Lords was refused. Costs and consequential orders were made as stated in the judgment.

• Court of Appeal (Civil Division) — The court dismissed the main appeal and allowed the second appeal in part, making an order under CPR 31.22(2) protecting page 2 of the confidential schedule.
• Chancery Division — Laddie J declined to continue confidentiality over page 2, while maintaining protection pending consideration by the Court of Appeal.