Illumina, Inc ("Illumina") & Ors v Illumina, Inc & Ors

Permission to use documents disclosed under the collateral purpose rule depends on special circumstances providing a cogent reason for collateral use. Disclosure ordered at a preliminary stage to enable a party to formulate possible competition-law pleadings is materially different from disclosure after pleadings have closed and parallel proceedings are live. The court must consider the risk that disclosure may confer an advantage in separate regulatory proceedings where the domestic claim may never proceed. Permission may therefore be refused at that stage, while leaving open a fresh application if the competition issues later become live in the domestic proceedings.

The judgment concerned the form of an order for specific disclosure in two patent proceedings. The defendant sought an unredacted copy of a pooled patents agreement within a confidentiality ring, together with permission for its advisers to use the confidential information in submissions to the European Commission’s competition investigation.

The court had previously ordered disclosure to enable the defendant to formulate proposed non-technical competition-law defences, but permission to plead those defences remained undecided. The issue was whether the collateral purpose rule permitted use of the disclosed document in the Commission’s investigation.

1. Application refused. The defendant was not permitted to use the unredacted agreement, disclosed under the court’s order, to make submissions to the European Commission.
2. Under CPR rule 31.22, the collateral purpose rule serves important and long-established public policy objectives. Permission for collateral use requires special circumstances constituting a cogent reason. The public interest in the just resolution of civil litigation must be balanced against the circumstances of the particular case.
3. The earlier decision in Infederation Ltd v Google, Inc [2015] EWHC 3705 (Ch) did not govern the present application. There, disclosure occurred after proceedings had substantially developed, pleadings had closed, and genuinely parallel domestic and Commission proceedings were pending. The proposed use assisted the Commission in understanding documents already in its possession.
4. Here, disclosure occurred at a preliminary stage and was akin to pre-action disclosure. Its purpose was to enable the defendant to formulate a possible competition defence and obtain permission to plead it. If the technical claims succeeded, or permission to plead the non-technical defences was refused, no competition issue would arise in the domestic proceedings. Allowing collateral use in those circumstances would encourage applications for early disclosure to obtain an advantage in a public authority’s investigation.
5. The refusal was without prejudice to a further application if permission were later granted to advance the non-technical defences. Once the competition issues became live, the circumstances would be materially different and the question could be reconsidered. The claimants were entitled to the costs of the dispute over the wording of the order, subject to summary assessment if not agreed.