Boehringer Ingelheim & Ors v Vetplus Ltd

In a consequential costs ruling, nominal success on an issue does not justify a costs deduction where that issue was not decided because it was practically compromised. Material voluntarily deployed in open court will not ordinarily be protected by a confidentiality order, particularly where no evidence supports confidentiality. An application under rule 31.22 of the Civil Procedure Rules 1998 was therefore refused.

Following the main judgment in the appeal, reported at [2007] EWCA Civ 584, the parties could not agree two aspects of the consequential order. Vetplus sought its costs in the Court of Appeal and the High Court, together with an interim payment. Boehringer sought a deduction based on its position concerning disclosure of material sent in pre-action letters. Vetplus also sought a confidentiality order under CPR 31.22 concerning documents relating to tests put in evidence.

The Court of Appeal had to determine the appropriate costs order and whether the evidential material should remain confidential.

Lord Justice Jacob delivered the ruling. Lord Justice Longmore and Lord Justice Pill agreed.

1. Costs. The issue concerning disclosure of material in the pre-action letters had not been heard because, after discussion, it had been practically compromised. That meant there was no proper basis for deducting costs merely because Boehringer had achieved a position it characterised as success on that issue.
2. The High Court judge had refused an injunction because there was no longer any threat. In addition, Boehringer had sent the same material to the press on what it claimed was a confidential basis. Sending material to the press while seeking to impose an obligation of confidence came close to discarding confidentiality. The material had also been discussed generally in open court.
3. Vetplus was accordingly entitled to its costs in the Court of Appeal and below. An interim payment was ordered on the usual fourteen-day basis, assessed at £40,000 rather than the £50,000 sought.
4. Confidentiality. The application under CPR 31.22 was refused. The documents had been voluntarily deployed in open court, and there was no evidence supporting the application for confidentiality.

The parties were invited to agree the consequential order and submit it to the court for entry.

1. Court of Appeal (Civil Division): Following the main judgment at [2007] EWCA Civ 584, the court determined consequential issues on costs and confidentiality. Boehringer’s requests were refused and Vetplus was awarded costs.
2. High Court of Justice, Chancery Division (Patents Court): Pumfrey J had refused an injunction because there was no longer any threat.