WL Gore & Associates GmbH v Geox SPA

A court retains flexible control under Civil Procedure Rules r 3.1(7) over procedural directions, including directions made by consent. The usual requirement of material not previously before the court is not exhaustive. A consent order settling only case management directions will not normally be treated as a contractual compromise preventing variation.

An application for an expedited trial requires consideration of good reason for expedition, the administration of justice, prejudice to the respondent, and other special factors. A commercial need for an earlier determination may justify expedition where the proposed listing does not materially displace other litigants and any possible prejudice can be protected by appropriate terms.

Gore brought patent proceedings against Geox concerning footwear-sole structures using waterproof breathable membranes. It sought declarations of non-infringement and revocation of four patents. The parties had agreed case-management directions providing for a trial no earlier than November 2008.

Lewison J refused Gore's application for a speedy trial. He held that there was no material change justifying variation of the consent order and that expedition would unfairly displace other litigants. Gore sought permission to appeal and an immediate appeal. Before the Court of Appeal, a September 2008 hearing became available before vacation judges, unlike the July hearing proposed below.

The central issues were whether the court could revisit the agreed directions and whether a September expedited trial should be ordered.

1. Application granted; appeal allowed. Lord Neuberger LJ, with whom Rix LJ agreed, held that the court could entertain the application to vary the agreed directions.

2. The usual approach under Civil Procedure Rules r 3.1(7), as considered in Collier v Williams [2006] EWCA Civ 20, is that variation normally requires evidence or argument not previously before the court. That formulation is not exhaustive. The fresh evidence about prospective licensees and the commercial effect of the existing trial date had not been before the court when the order was made.

3. The relevant date was ordinarily 18 January 2008, when the parties agreed the directions, rather than the later sealing date. A consent order concerning procedural directions, with no substantive issue compromised, would not normally be a binding contract between the parties. The court nevertheless had to respect agreed case-management directions and could not vary them merely because a later judge would have made a different order.

4. The court identified four matters for an expedited-trial application: whether there was good reason for expedition; whether it would interfere with the good administration of justice; whether it would prejudice the other party; and any other special factors. Gore had a substantial commercial reason for an earlier determination. A September hearing, unlike a July hearing, would not materially cause queue-jumping because suitable judges and a listing were available.

5. Geox could seek to refix the hearing if it established unfair prejudice, including difficulty securing expert evidence. Gore's earlier conduct and failure to appreciate the importance of timing were relevant, but refusing the limited expedition sought would be disproportionately penal. The order was to provide for a September 2008 hearing, subject to appropriate protection for Geox. Gore was to pay the costs below and on the appeal.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The court ordered a September 2008 expedited trial, subject to Geox's right to seek refixing if unfair prejudice were shown.
• Chancery Division, Patents Court (Lewison J): The application for a speedy trial was refused because the agreed directions were not to be varied and expedition was considered inappropriate.