Cook UK Limited v Boston Scientific Limited & Anor

Where a court grants a without-notice application under PD57AC permitting a party to rely on witness evidence prepared outside the prescribed requirements, the application notice and supporting evidence should be served on parties against whom the order was made under Civil Procedure Rules 1998, rule 23.9(2). The order must also state the right to apply to set it aside or vary it under rule 23.9(3).

Where a judge makes a substantive determination on the papers while exercising a public judicial function, the supporting evidence should generally be made available. This promotes fairness, transparency and the ability of affected parties to scrutinise and challenge the decision-making process, subject to possible exceptions and the court’s management of privilege.

Cook brought a patent revocation claim against Boston Scientific. The proceedings expanded to include infringement claims, additional patents and additional parties. The parties settled before judgment.

At trial, the judge had heard argument on Cook’s without-notice application under paragraph 4.4 of PD57AC to vary the certificate of compliance required by paragraph 4.3. Mr Justice Mellor had granted the application on the papers and permitted specified witness statements to be modified.

Boston argued that it should receive Cook’s application notice and supporting evidence under rules 23.9 and 23.10. The judge did not need to determine the issue to dispose of the proceedings, but gave guidance on whether an order under paragraph 4.4 was made against Boston and whether the supporting materials should be publicly available.

1. Disposition. The patent proceedings had settled. The court therefore did not need to determine the procedural issue and made an appropriate order.
2. Application of rule 23.9. An order under paragraph 4.4 of PD57AC permits the applicant to rely on evidence prepared outside the requirements of the practice direction and Statement of Best Practice. That evidence may affect the other parties. Accordingly, an order allowing the certificate of compliance to be varied is an order made against the other party for the purposes of Civil Procedure Rules 1998, rule 23.9(2). The application notice and supporting evidence should therefore be served with the resulting order. The order should contain the statement required by rule 23.9(3) concerning the right to apply to set it aside or vary it (paras [15]–[18]).
3. Judicial determination on the papers. A judge dealing with a without-notice application under paragraph 4.4 on the papers makes a substantive judicial determination, exercises a public judicial function and gives reasons, even though no judgment is issued. There is generally no basis for distinguishing that process from a determination made in open court merely because the judge acted privately (paras [19]–[21]).
4. Transparency and fairness. Supporting evidence relied upon by the judge should generally be made available so that affected parties can understand how justice was administered, why the decision was made and what evidence supported it. This promotes transparency and permits criticism of the process, reasoning or decision. Exceptions may exist, and privilege can be managed by the court. No proportionality, practicality or countervailing-prejudice issue arose on the facts as described (para [21]).