Liqwd Inc & Anor v L'Oreal (UK) Ltd & Anor

A court may revisit its own decision before the order is perfected, but the discretion is governed by the overriding objective. Exceptional circumstances are not required. The relevant question is whether reconsideration would secure justice in the right way, having regard to finality, procedural compliance, proportionality, party detriment, court resources and the strength of the new case. Fresh evidence is insufficient where it merely strengthens a point already advanced and does not resolve the remaining issues. A party cannot ordinarily use new evidence to escape the consequences of its own decision to advance a case late or in an incomplete form.

Following a patent trial, judgment was handed down in favour of the patentee: claims 1–10 were invalid, but amended claim 11 was valid and infringed. The defendants applied to admit a further expert report, reopen the trial and reconsider the priority issue affecting claim 11. They also sought disclosure concerning the claimants’ knowledge of the chemical product made in an earlier priority-document experiment.

The application concerned whether the fresh experiment justified reopening an issue previously addressed and whether disclosure was relevant to that procedural discretion. The earlier judgment is reported at [2018] EWHC 1394 (Pat).

1. Application to reopen. The application was dismissed. The new experiment materially strengthened one aspect of the defendants’ case, but did not determine whether the result was inevitable, how the skilled chemist would understand the experimental instructions, or whether there was clear and unambiguous disclosure of the claimed invention.
2. Applicable discretion. Following In Re L (Children) [2013] UKSC 8, the jurisdiction to revisit a decision continues until the order is perfected. The discretion is governed by the overriding objective in CPR r1.1. The court rejected the proposition that exceptional circumstances are required.
3. The overriding objective is to obtain the right answer in the right way. It includes proportionate cost, procedural compliance, fairness, equal footing, expedition and appropriate use of court resources. The absence of detriment suffered by the successful party in reliance on the judgment was important, but not decisive.
4. The fresh evidence was unavailable before trial only because the relevant point had been thought of late during the trial. The defendants could and should have raised it properly then, sought an adjournment if necessary, and obtained the experiment and expert evidence at that stage. The application was therefore an attempt to escape the consequences of decisions made during the trial.
5. Disclosure concerning the claimants’ knowledge was unnecessary and disproportionate. Knowledge could be relevant to the discretion, but it was not relevant to the substantive priority issue, and the evidential position could fairly be assumed without further disclosure.

The judgment describes an earlier first-instance trial judgment in the same litigation, reported at [2018] EWHC 1394 (Pat). The present application to reopen and reconsider the priority issue was dismissed.