Pfizer Health AB & Anor v Schwarz Pharma AG & Ors

Third-party access to documents on a court file is governed by the applicable rules and practice directions. There is no general right to inspect the file. An application for permission must identify the documents or classes of documents sought with sufficient particularity and state the grounds relied on.

The principle of open justice strongly favours access to documents read by the court in its decision-making process where the applicant has a legitimate interest. Where documents were filed but not read, access should be granted only where there are strong grounds that it is necessary in the interests of justice. Documents already available from public registers should ordinarily be obtained from those sources first.

The application was made by Strickland (Legal) LLP, a non-party solicitor acting for an undisclosed commercial client interested in assessing the validity of patents concerning treatment for urinary incontinence.

The underlying patent proceedings had been stayed and later discontinued, apart from amendment proceedings which were subsequently discontinued. The applicant sought copies of all allowable documents from the court file under Civil Procedure Rules 1998 provisions governing non-party access. The issue was whether the application was sufficiently particularised and, applying the relevant access principles, which documents should be disclosed.

1. Disposition. The application was granted in part. Permission was given to obtain copies of the amended Grounds of Invalidity, two identified documents used on an earlier directions application, and the Statement of Grounds and Statement of Opposition in the amendment proceedings. Exhibits to the witness statement and expert report were excluded.
2. Under the former Practice Direction provisions and CPR 5.4C, non-party access depends on the applicable rule. There is no unfettered right to documents on the court file. An application for permission must identify the document or class of documents sought with reasonable precision and state the grounds relied on. A request for all documents, or all allowable documents, is defective.
3. The permission jurisdiction operates as a safety valve, requiring the court to consider all the circumstances. The principle of open justice is a powerful reason for access where the purpose is to monitor the administration of justice, particularly while proceedings are taking place. Following Dian AO v Davis Frankel & Mead (A Firm) and another [2004] EWHC 2662 (Comm), where the documents were read by the court as part of its decision-making process, the court should generally lean towards access if the applicant has a legitimate interest.
4. Where documents were filed only for administrative purposes and were not read by the court, open justice is not engaged. Access should then be allowed only where there are strong grounds for thinking that disclosure is necessary in the interests of justice. The court also approved the flexible approach described in Dobson v Hastings [1992] Ch 394.
5. The CPR procedure should not generally be used to obtain documents available from the UKIPO or EPO. Those public sources should be the first port of call. A commercially active party has, however, a legitimate interest in seeing grounds on which a patent is attacked, and that interest may justify access where the relevant document is unavailable elsewhere.
6. The application was therefore limited to specifically identified documents. The amended Grounds of Invalidity, the witness statement and expert report read or assumed to have been read on the directions application, and the amendment pleadings were sufficiently connected with patent validity to justify disclosure. Publicly available exhibits were not disclosed.

First-instance application before the High Court (Patents Court). The underlying patent proceedings had been stayed and later discontinued, with the amendment proceedings subsequently discontinued.