Nador Cott Protection SAS v Asda Stores Limited & Anor

On a pleading issue, a party cannot advance at trial a case that two varieties are factually distinct where the pleadings and agreed facts treat them as the same variety under different names. Such a case is new if it requires factual differences that have not been pleaded.

A hearsay notice must identify clearly each statement relied upon as evidence of the matters stated. Compendious references to large bodies of documents and paragraphs are insufficient. In Shorter Trial Scheme proceedings, a notice serving as a general reservoir of material may be struck out as an abuse, including under CPR 32.1(2).

Nador Cott Protection SAS brought proceedings against Asda Stores Limited and International Procurement and Logistics Limited concerning alleged infringement of a United Kingdom plant breeders’ right relating to the Nadorcott mandarin variety.

At a pre-trial review, the court considered whether Asda’s pleadings permitted it to argue that W. Murcott and Nadorcott were factually distinct varieties. The court also considered objections to an amended hearsay notice relying on extensive material from related foreign proceedings, together with proposed expert evidence and experiments.

The central questions were whether the proposed factual case was pleaded and whether the hearsay notice sufficiently identified the statements relied upon.

1. The court held that Asda could not argue at trial that W. Murcott and Nadorcott were factually distinct varieties. The Amended Defence pleaded that Tang Gold was derived from W. Murcott and raised a temporal argument concerning development after 1988. It did not plead that W. Murcott and Nadorcott were factually distinct, nor identify the differences said to support that conclusion.

2. The agreed statement of facts reinforced that conclusion. It stated that W. Murcott had been renamed Nadorcott and that Asda relied on only two differences between the Nadorcott/W. Murcott variety and Tang Gold. The accompanying footnote did not sensibly qualify the clear statement that W. Murcott had been renamed Nadorcott. Introducing a factual-distinctness case would therefore be a new case, not mere supplementation of the existing pleading.

3. The amended hearsay notice was struck out under CPR 32.1(2). A hearsay notice must identify the statements relied upon as evidence of the matters stated. The notice instead contained broad and compendious references to lengthy affidavits, expert reports, paragraphs and exhibits, leaving the court to excavate the material to identify potentially admissible evidence. This was an abuse and was particularly inappropriate at the pre-trial review stage of a Shorter Trial Scheme case.

4. It was unnecessary to determine separately the expert-evidence and experiments issues. The court indicated that it inclined towards NCP’s position on the experiments issue and distinguished the circumstances from COPA v Wright [2023] EWHC 2408 (Ch), where the expert evidence was clearly duplicative of evidence already served pursuant to directions.

5. The court noted that an application to rely on a re-amended hearsay notice had subsequently been made and would be considered on its merits.