IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE LADDIE
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LONGMORE
LILLY ICOS LIMITED
- and – PFIZER LIMITED Respondent/Appellant
Crown Copyright ©
Lord Justice Buxton :
This is the judgment of the Court.
“31.22 (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where-
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.”
As is well-known, provisions to this broad effect, though formulated in slightly different terms, were introduced into RSC Order 24 rule 14A as a result of the decision of the government of the United Kingdom not to contest the complaint declared admissible by the European Commission on Human Rights, (1984) 7 EHRR 146, in relation to the law declared by the House of Lords in Home Office v Harman  AC 280.
The document and its history
“I understand that details of sales of sildenafil cirate, broken down into the USA and the rest of the world, together with advertising and promotional expenses, on a month by month basis to August 1999 have been provided to the Claimant’s solicitors in confidence.”
The judge’s ruling
“While the broad principle is that the Courts of this country must, as between the parties, administer justice in public, this principle is subject to apparent exceptions….But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done….In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic…It may often be necessary, in order to attain its primary object, that the Court should exclude the public…The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace the application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”
Basing himself upon this classic statement, the judge held, at p6 of his judgment, that
“Where the court is dealing with a matter of general public concern, then the party seeking to withold material from disclosure has to make out particularly clearly that there is a necessity for the order he seeks.”
“I can see very great difficulties in [the patentee’s] way in making out a case of necessity for secrecy in respect of the figures relating to advertising and promotional expenses in view of the central nature of this issue to the task facing the court in considering the validity of this patent and in view of the extensive disclosure in [the patentee’s witness’s] statement which seems to me to disclose the most important commercial information, that is to say, sale, numbers of customers, and so on.”
However, the patentee having indicated that it would wish to appeal any order adverse to it in relation to page 2 of the schedule, the judge agreed to maintain the confidentiality order that otherwise he would have made until this court could consider the matter, with the benefit of such evidence as the patentee saw fit to put before us.
Criticisms of the judge’s analysis
“39.2 (1) The general rule is that a hearing is to be in public.
(3) A hearing, or any part of it, may be in private if-
(a) publicity would defeat the object of the hearing;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or patient.”
It may be noted in passing that the validity of CPR 39.2 and its conformity to articles 6 and 10 of the Convention was upheld by the Divisional Court in R v Bow County Court ex p Pelling  UKHRR 165, a decision in respect of which permission to appeal was refused by this court. The rule makes a clear distinction between the types of case addressed in Scott v Scott, which are dealt with in sub-rules (a) and (d) above, and problems such as that in our case, which is addressed in sub-rule (c). A test of “necessity”, generally stated, only goes a limited way towards illuminating the court’s task in the latter case, which has to be approached more broadly: whether the question is whether to hold the hearing in private, or whether to make or refuse an order under CPR 31.22(2).
The court’s approach
i) The court should start from the principle that very good reasons are required for departing from the normal rule of publicity. That is the normal rule because, as Lord Diplock put it in Home Office v Harman  AC 280 at p303C, citing both Jeremy Bentham and Lord Shaw of Dunfermline in Scott v Scott,
“Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.”
The already very strong English jurisprudence to this effect has only been reinforced by the addition to it of this country’s obligations under articles 6 and 10 of the European Convention.
ii) When considering an application in respect of a particular document, the court should take into account the role that the document has played or will play in the trial, and thus its relevance to the process of scrutiny referred to by Lord Diplock. The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document. However, in particular cases the centrality of the document to the trial is a factor to be placed in the balance.
iii) In dealing with issues of confidentiality between the parties, the court must have in mind any “chilling” effect of an order upon the interests of third parties: see paragraph 5 above.
iv) Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. Those reasons will in appropriate cases be weighed in the light of the considerations referred to in sub-paragraph (ii) above.
v) It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private. In the present case, the manner in which the documents were handled, together with the confidentiality agreement during trial, enabled the whole of the trial to be held in public, even though the judge regarded it as justified to retain confidentiality in respect of a significant number of those documents after the trial was over. The court should bear in mind that if too demanding a standard is imposed under CPR 31.22(2) in respect of documents that have been referred to inferentially or in short at the trial, it may be necessary, in order to protect genuine interests of the parties, for more trials or parts of trials to be held in private, or for instance for parts of witness statements or skeletons to be in closed form.
vi) Patent cases are subject to the same general rules as any other cases, but they do present some particular problems and are subject to some particular considerations. As this court pointed out in Connaught, patent litigation is of peculiar public importance, as the present case itself shows. That means that the public must be properly informed; but it means at the same time that the issues must be properly explored, in the sense that parties should not feel constrained to hold back from relevant or potentially relevant issues because of (legitimate) fears of the effect of publicity. We venture in that connexion to repeat some words of one of our number in Bonzel v Intervention Ltd  RPC 231 at p234.27:
“the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear evidence in relation to documents which are privileged which could be used in other jurisdictions, would tend to make patentees reluctant to disclose the full position. That of course would not be in the interest of the public.”
In our view, the same considerations can legitimately be in the court’s mind when deciding whether to withdraw confidentiality from documents that are regarded by a party as damaging to his interests if used outside the confines of the litigation in which they were disclosed.
The principles applied to this case