Optis Cellular Technology LLC & Ors. v Apple Retail UK Limited & Ors.

A party is entitled to present its pleaded case in the manner it chooses, provided the issues are articulated clearly enough for determination. The court should not compel a pleading to be restricted by evidence that the party no longer relies upon, where the pleading itself imposes no such limitation.

Earlier abandoned evidence may nevertheless remain relevant to an opposing party’s challenge to consistency, credibility or the strength of the current case. A party need respond only to evidence actually adduced. The declarations ultimately sought will depend on the evidence at trial. Indemnity costs require conduct sufficiently out of the ordinary to justify sanction, rather than merely an error capable of correction.

The claimants sought declarations and other relief in patent and FRAND proceedings. Apple applied for clarification of the claimants’ position statement, principally concerning the number of relevant patent families and the relationship between assessments previously supported by Ms Dwyer and the later assessment by PA Consulting.

Apple also sought clarification concerning the declarations identified in paragraph 1 of the position statement and argued that there was a mismatch between those declarations and the evidence being pursued. The court was additionally asked to revisit costs orders concerning an earlier strike-out application and the amendments allowed on the present application.

1. Clarification of patent families. The court allowed the amendments to the position statement. The claimants had abandoned reliance on Ms Dwyer’s evidence and were entitled to advance the case derived from the PA Consulting material. The pleaded schedule referred to all listed patents and did not limit the patents by reference to either assessment. Apple’s proposed reduction of the pleaded figure to the overlap between the two assessments would therefore impose a misconceived fetter on the claimants’ case.
2. Permissible lines of attack. The abandonment of Ms Dwyer’s evidence did not prevent Apple from relying on it to show that the claimants’ position had changed, or to challenge the strength of the present case. Any mismatch between the figures used in the position statement could also be explored through evidence at trial. The court declined to determine those issues on the interlocutory application.
3. Evidence and declarations. Apple was required to respond to evidence actually adduced, rather than evidence which might have been adduced under a broader pleading but was not. The precise declarations would depend on the evidence as found at trial.
4. Costs. The claimants were to pay Apple’s costs occasioned by and thrown away by the amendments. The existing order that the costs of the strike-out application be costs in the case was maintained because that hearing had been useful and necessary in clarifying the conduct of the trial.
5. Indemnity costs. The court stated that indemnity costs require something out of the ordinary, involving conduct warranting proper sanction. A correctable error followed by prompt rectification and appropriate apologies would not, without more, justify such an order.