Anan Kasei Co. Ltd v Neo Chemicals & Oxides (Europe) Ltd

In intellectual property litigation involving highly confidential commercial information, the court has jurisdiction to balance a party’s need for meaningful participation against the interests of the disclosing party and third parties in preserving confidentiality.

There is no universal confidentiality regime suitable for every case or procedural stage. Access to key evidence by at least one suitable representative will ordinarily be required, but disclosure need not extend to material of peripheral or no relevance. The court may impose tailored protections, including different representatives, redactions and time-limited undertakings. The receiving party’s organisational structure, the nature and value of the information, its relevance to the issues, the risk of misuse and the practical ability to police misuse are relevant considerations.

The judgment concerned a further confidentiality application in patent proceedings between Anan Kasei Co. Ltd and Rhodia Operations S.A.S, and Neo Chemicals & Oxides (Europe) Ltd and related defendants. An inquiry as to damages was due to begin in January 2022.

Neo sought disclosure of all highly confidential material to its chief operating officer, Mr Kevin Morris, so that he could oversee the litigation and approve Neo’s evidence. Rhodia and a third party opposed unrestricted disclosure because the material contained commercially sensitive pricing, supply and manufacturing information concerning competing products.

The central issues were whether the court had jurisdiction to restrict a party’s access to evidence at trial and, if so, what confidentiality arrangements struck the proper balance.

1. Jurisdiction and governing principles. The court rejected Neo’s contention that it lacked jurisdiction to restrict access to confidential evidence at trial. The open justice and natural justice principles recognised in Al-Rawi, together with the requirements of the overriding objective, required meaningful participation but did not create an absolute right for every officer of a party to see every document.
2. The court applied the non-exhaustive principles summarised by Floyd LJ in Oneplus v Mitsubishi. The court must balance the receiving party’s need for access to relevant documents against the protection of confidential commercial and technical information. The assessment is fact-sensitive. Relevant considerations include the nature and value of the information, its potential for misuse, its relevance and role in the proceedings, the receiving party’s organisation, and the practical difficulties of policing misuse.
3. The proposition in McKillen v Misland that the court had no jurisdiction, or only a practically theoretical jurisdiction, to deny access at trial could not be applied as a blanket rule to intellectual property disputes between competitors. The case was materially different because it concerned a party’s own financial circumstances in an unfair prejudice petition.
4. The highly confidential material had to be divided according to relevance. Mr Morris should have access to material concerning the price and non-price terms of Rhodia’s HSA cerium oxide supplies to Party B, which was central to the damages inquiry. Material concerning mixed oxide products, and material of peripheral or no relevance, did not automatically need to be disclosed to him.
5. A more nuanced arrangement was therefore required. Neo could nominate another representative to review less relevant material under a Wassmann-form undertaking. If Mr Morris received mixed oxide pricing data, he was required to undertake not to participate in discussions or decisions concerning the setting of prices for those products supplied to Party B for five years from the end of the calendar year to which the latest disclosed data related. The undertakings were to be reviewed by the trial judge.
6. The court also declared that the relevant witness statements had been served, reset the evidence and trial-bundle timetable, and made the requested provisional trial timetable order.

This was a first-instance confidentiality decision in ongoing patent proceedings. The judgment refers to an earlier confidentiality decision in the same litigation, [2021] EWHC 2825 (Pat), and to a later disclosure judgment in the same litigation, [2021] EWHC 1972 (Pat).