Kingspan Insulation Ltd & Anor v Xtratherm UK Ltd

A notice to admit facts should be answered at the earliest date that is reasonably practicable, convenient and proper. Its purpose is to identify factual issues early, narrow disclosure and expert and witness evidence, and focus the conduct of the action. The court should assess proportionality realistically. Limited factual complexity, the number of products, or the possible need for expert input will not justify delay where useful admissions can still be made. A party should provide non-admissions where it cannot yet responsibly admit a fact, rather than postpone the entire exercise.

This was a case management conference in patent infringement proceedings. The claimants alleged infringement of a patent concerning phenolic insulating foam with perforated gas-impermeable facers. The defendant denied infringement and counterclaimed for revocation on grounds of obviousness and insufficiency.

The claimants served a notice to admit facts addressing the integers of claim 1 across nine products. The issue was the date by which the defendant should respond. The claimants sought a response by 26 July 2013; the defendant proposed a date in or near October 2013.

1. Purpose of the notice. A notice to admit facts is intended to produce clarity about factual issues at the earliest date that is reasonably practicable, convenient and proper. Early admissions can eliminate non-issues, narrow disclosure and reduce the scope of witness and expert evidence.
2. Proportionality and practicality. The court must assess the work required realistically. The possible need for expert assistance did not justify postponing the whole exercise. If an expert was unavailable for particular matters, the defendant could make non-admissions at that stage. The existence of nine products, different thicknesses and three facings did not create the level of complexity asserted. Much of the work involved administrative collation rather than difficult product-by-product analysis.
3. Application. The defendant had received the notice for about three weeks and had known the infringement allegations for about six months. The pleadings were relatively uninformative and the defendant had not identified the real areas of dispute. Early clarification was therefore particularly important for disclosure, witness statements and the future conduct and possible settlement of the action.
4. Order. The claimant’s proposed date of 26 July was unreasonably early, but the defendant’s proposed date in or near October was too late. The defendant was ordered to respond to the notice to admit facts by 31 August 2013.