Unknown case

Permission to appeal to the Supreme Court should be refused where the proposed challenge concerns only whether a foreign court was first seized of an issue and that question turns entirely on the evidence. Where the evidence before the Court of Appeal clearly established that the foreign court had not been seized, and the proposed appeal raised no question of principle or general importance, permission should not be granted.

The application arose from the Court of Appeal’s decision of 30 July 2010 in proceedings concerning whether a Swedish court was first seized of the issue whether a patent claim covered products made by Mölnlycke Health Care AB and Mölnlycke Health Care Limited. The proceedings had originated in the Patents Court before Floyd J under case number HC09 C03755, with BSN Medical Ltd and BSN Medical GMBH as defendants. The defendants relied on subsequent communications between the Swedish judge and their lawyers, together with a later German decision, to seek permission to appeal. The central question was whether those materials raised an arguable point warranting an appeal to the Supreme Court.

1. Permission refused. The Court of Appeal, in a judgment given by Jacob LJ for the Court, refused permission to appeal to the Supreme Court.
2. The underlying issue was whether the Swedish court was first seized of the question whether the patent claim covered the defendants’ actual products. The Court had asked the Swedish judge whether that issue was in dispute and had received the clear answer that it was not in issue as the case then stood.
3. Whether the Swedish court was already seized of the issue depended entirely on the evidence. On the evidence before the Court of Appeal, it was clearly not so seized.
4. Subsequent communications and the later German decision did not raise a question of principle, still less a question of general importance, sufficient to justify permission.

• Court of Appeal (Civil Division): On a written application, permission to appeal to the Supreme Court from the Court’s decision of 30 July 2010 was refused: [2010] EWCA Civ 1053.
• High Court of Justice, Chancery Division, Patents Court: The underlying proceedings were before Floyd J under case number HC09 C03755. No neutral or report citation is given.