Polymer Logistics (Israel) Ltd v DS Smith Plc & Anor

An expedited trial requires real and justifiable urgency. The court must assess the evidence realistically, including the market’s likely development and the practical consequences of delay. A speculative risk of market change is insufficient. Where the evidence does not establish urgency, the application fails at the first stage and the court need not consider the remaining expedition criteria.

Polymer Logistics (Israel) Ltd brought patent infringement proceedings concerning pallet-and-dolly products. DS Smith later commenced related infringement proceedings, and both actions were transferred to the High Court for trial together.

The trial was listed for March 2014. Polymer sought expedition to July 2013, arguing that market standardisation in favour of DS Smith’s K-Roll product might occur before trial and cause irreversible commercial harm. The central issue was whether Polymer had shown sufficient urgency to justify expedition.

1. Application dismissed. Polymer failed to establish the urgency required for an expedited trial.
2. In Daltel v Makki [2004] EWHC 1631 (Ch), the requirements for expedition were identified, including the first criterion of real and justifiable urgency. The judge considered that criterion first.
3. The alleged six-month risk of de facto market standardisation in favour of DS Smith was insufficiently supported. Although Tesco had adopted substantial numbers of the K-Roll product and Chep might favour standardisation, the evidence did not show that customers would use their purchasing power to impose rapid standardisation.
4. The market was fragmented, and the evidence showed that supermarkets and suppliers proceeded cautiously because major logistical changes carried significant operational risks. The history of attempted standardisation also indicated that change was likely to be slow.
5. The pending patent proceedings themselves reduced the likelihood of rapid standardisation. Potential users faced the risk that a trial might establish infringement and lead to an injunction preventing further supply of DS Smith’s product.
6. The six-month period relied upon by Polymer was effectively selected without a sufficient evidential foundation. The court therefore ruled that the existing trial timetable had not been shown to be inappropriate. Having failed at the first hurdle, Polymer’s application did not require consideration of the other expedition criteria.