Nestec S.A. & Ors v Dualit Ltd & Ors

The court’s inherent jurisdiction cannot be used to grant third parties access to copies of trial exhibits or documents put to witnesses where the Civil Procedure Rules 1998 provide no such route. The principle of open justice permits reporting and reproduction of material read out in court, but it does not ordinarily create a right to copy evidential documents. The rules governing court records and witness statements do not extend to exhibits. Their limited scope indicates that access to exhibits was not intended to be available through the inherent jurisdiction. A legitimate intended use of the documents cannot overcome the absence of jurisdiction.

DEMB Holding BV, an opponent in related European Patent Office proceedings, sought copies of documents used as exhibits or put to witnesses during the trial of Nestec S.A. & Ors v Dualit Ltd & Ors before Arnold J. DEMB wished to use the documents in prior-use and priority arguments before the EPO.

The application was made under CPR rule 5.4C and, alternatively, the court’s inherent jurisdiction. The court administration could not locate the relevant court file, and the documents were assumed not to be available from it. The central issue was whether the court had power to order access to trial exhibits and similar documents after the trial.

1. The application for documents in categories 2 to 8 was dismissed. The court accepted that DEMB had a legitimate interest in obtaining the documents and that, if jurisdiction existed, the application might have been granted subject to safeguards.

2. CPR rule 5.4C could not assist because the court file and related records could not be located. The application therefore had to be considered on the assumption that the documents were not part of the court file.

3. The principle of open justice did not confer the requested inherent power. GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd distinguished witness statements and skeleton arguments from exhibits. Documents may enter the public domain when read out or referred to in court, but that does not give the public a general right to obtain or copy them.

4. The existing rules established relevant boundaries. CPR rules 32.12 and 32.13 concern witness statements and do not extend to exhibits. CPR rule 5.4C concerns court records. The rules could have provided access to exhibits subject to safeguards, but had not done so. The omission left no room for an order under the inherent jurisdiction.

5. British Arab Commercial Bank v Algosaibi Trading Services Ltd supported the conclusion that exhibits were outside the relevant rules and could not be obtained through the inherent jurisdiction. The possible availability of a request by the EPO under Article 117 of the European Patent Convention and Practice Direction 63 paragraph 13 did not provide a basis for the present application.

6. The application was not directed to scrutiny of the court’s decision-making process, but to using documents elsewhere. That legitimate purpose did not alter the jurisdictional analysis. The application was dismissed in relation to categories 2 to 8.

This was a first-instance application in the High Court. No appellate history is stated in the judgment.