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

Pleadings define the case that parties must meet, the evidence and argument required, and the issues for determination. A party cannot use a rejoinder to expand or vary its positive case. New evidence may be admitted in reply where it genuinely answers material newly raised by the opposing party, but not where it supports an enlarged version of the original case. Evidence already adduced may remain in the proceedings, although it must be assessed through the prism of the pleaded cases.

The claimants and defendants were preparing for a four-week FRAND trial. Shortly before trial, the claimants sought permission to rely on a licence concluded on 5 May 2022, related documents, and further factual and expert evidence. The proposed material was advanced through a rejoinder pleading said to respond to the defendants’ criticism of the claimants’ comparable licences.

The court had to determine whether the proposed rejoinder genuinely answered the defendants’ case or impermissibly expanded the claimants’ pleaded positive case, and whether the related evidence should be admitted.

1. Pleadings and scope of the case. Pleadings serve to identify the case to be met, guide the introduction of evidence and argument, and identify the issues for decision. Their scope must be understood at an early stage.
2. Impermissible expansion. The claimants’ position statement expressly identified five licences as neither reliable nor useful comparables and defined nine other licences as the relevant comparables. The proposed rejoinder sought to rely on the excluded licences as useful contextual evidence. That was a variation and expansion of the positive case, rather than a genuine rejoinder to the defendants’ response.
3. Evidence already in the case. Evidence already adduced concerning a broader range of licences was not excluded. It would, however, be reviewed through the prism of the parties’ pleaded cases. The court would determine the issues by reference to the points articulated in the pleadings.
4. Outcome. The application to introduce the rejoinder point was refused. Blasius 6, Bezant 4, and the identified limited parts of Bezant 5 were not admitted into evidence.