Lilly Icos Ltd v Pfizer Ltd (No 2)

Under Civil Procedure Rules 1998 rule 31.22, public reference to a disclosed document does not invariably prevent a court from continuing to restrict its use. The court must begin with the strong principle of open justice and require very good reasons for confidentiality. Relevant considerations include the document’s role and centrality in the trial, specific evidence of commercial harm, the possible chilling effect on third parties, and the desirability of avoiding private hearings. The necessity test in Scott v Scott [1913] AC 417, concerning whether an action could be heard privately at all, cannot be directly transferred to limited confidentiality after disclosure. A document with only a passing role may properly remain confidential where genuine commercial sensitivity is shown.

The appeal arose from patent revocation proceedings in which the patentee had disclosed a commercial-success schedule containing sales information and advertising expenditure. The advertising figures were referred to in a witness statement but were not used in argument. Laddie J declined to continue confidentiality in respect of that part of the schedule, although the opponent did not oppose the order and the judge had raised the issue himself.

The patentee appealed. The opponent abandoned its cross-appeal and did not oppose the appeal. The central issue was whether the Court should make an order under Civil Procedure Rules 1998 rule 31.22(2) restricting use of the advertising figures after their reference at a public hearing.

Appeal allowed. Buxton LJ delivered the judgment of the Court. The confidentiality order was continued for page 2 of the schedule only.

1. Civil Procedure Rules 1998 rule 31.22 imposes a basic restriction on the use of disclosed documents. The public-hearing exception does not prevent the Court from making a further order under rule 31.22(2).
2. The starting point is the principle of open justice. Very good reasons are required before departing from it. The Court should consider the particular document’s role and centrality in the trial, the possible chilling effect on third parties, specific evidence of damage from publication, the desirability of avoiding private or partly private hearings, and the particular public importance of patent litigation. Mere assertions of confidentiality are insufficient.
3. The necessity discussed in Scott v Scott [1913] AC 417 concerned the necessity of excluding the public so that an action could be heard at all. It could not be directly transposed to limited confidentiality between parties. The structure of rule 39.2 confirmed the distinction between private hearings and confidential information.
4. The approach in Smithkline Beecham v Connaught [1999] 4 All ER 498 meant that documents pre-read by the judge or referred to in witness statements used as evidence could fall within the public-hearing exception, even without being physically read in court. The Court also noted that confidentiality agreements did not constrain the later decision under rule 31.22(2). Obiter, it indicated that a third party knowingly using a document subject to such an order might arguably be in contempt by analogy with A-G v Times Newspapers Ltd [1992] 1 AC 191.
5. Page 2 had played only a very limited role. It was mentioned in passing and was not relevant to the public’s understanding of the issues or the Court’s decision. Evidence established that advertising figures were regarded in the industry as commercially sensitive. The Court therefore made the confidentiality order in respect of page 2, while emphasising that advertising figures would not automatically qualify for protection in every case.

1. Court of Appeal (Civil Division) allowed the appeal and made an order under Civil Procedure Rules 1998 rule 31.22(2) protecting page 2 of the confidential schedule.
2. Chancery Division Laddie J declined to continue confidentiality for the advertising and promotional expenditure figures. The order was maintained pending appeal.