Oxford Gene Technology Ltd v Affymetrix Inc & Anor

Fresh evidence on appeal should not be admitted where it is irrelevant to the proper construction of the agreement in issue. The court may also refuse evidence which could, with appropriate diligence, have been obtained for trial, particularly where its admission would probably require a remittal. Evidence of insufficient relevance should likewise be excluded. Costs should reflect those conclusions, while unnecessary attendance at hand-down should not attract a costs liability.

In the underlying appeal from Jacob J in the Chancery Division, the court agreed that Affymetrix had not joined the relevant consortium under a licence agreement. It nevertheless allowed the appeal because the transferred Beckman activity was a business within the meaning of the agreement, so that the licence transferred.

This ruling determined the reserved costs issue arising from Affymetrix’s application to adduce fresh evidence. The proposed material comprised documents held by Beckman and documents disclosed in United States proceedings under a protective order. The central issue was whether Affymetrix should bear OGT’s costs of that application.

1. Costs application determined. Aldous LJ, with whom Brooke and Sedley LJJ agreed, ordered Affymetrix to pay OGT’s costs of and relating to the application to introduce fresh evidence. Affymetrix was not liable for OGT’s costs of attending the hand-down hearing to make costs submissions.
2. The proposed fresh evidence would not have been admitted. On the court’s construction of the licence agreement, it was irrelevant because the appeal succeeded on the meaning of “business”, rather than on a factual enlargement of Beckman’s activity.
3. The first category of documents was independently unsuitable for admission. Affymetrix knew before trial that Beckman had disclosed seven boxes of documents to OGT. It could have sought inspection, and with appropriate diligence could have placed the resulting evidence before the trial judge. That consideration strongly supported refusal, since admission would probably have required a remittal.
4. The second category, consisting of documents disclosed in United States proceedings and unknown to Affymetrix’s English advisers, was also insufficiently relevant to justify admission in the Court of Appeal.
5. The court treated attendance at the hand-down hearing as unnecessary under the procedure adopted. It therefore excluded the costs of that attendance from the costs payable by Affymetrix. Counsel were directed to agree and lodge a minute within 14 days so that the order could be drawn up.

• Court of Appeal (Civil Division): The underlying appeal was allowed because the transferred Beckman activity was a “business” within the licence agreement. In this reserved costs ruling, the court ordered Affymetrix to pay OGT’s costs of the unsuccessful fresh-evidence application, save for hand-down attendance costs.
• Chancery Division (Jacob J): The judge rejected Affymetrix’s consortium argument and held that the transferred activity was not a business for the purposes of the licence. The citation is not stated in the judgment.