BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| (1) ILLUMINA, INC.
(a company incorporated in the state of Delaware, USA)
(2) SEQUENOM, INC
(a company incorporated in the state of Delaware, USA)
- and –
|(1) PREMAITHA HEALTH PLC
(2) PREMAITHA LIMITED
|Defendants in Claim No. HP-2017-000054
|(1) TDL GENETICS LIMITED
(2) THE DOCTORS LABORATORY LIMITED
(3) ARIOSA DIAGNOSTICS, INC.
|Defendants in Claim No. HP-2017-000075
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MR. THOMAS HINCHLIFFE QC and MS. GEORGINA MESSENGER (instructed by HGF Law LLP) for the Defendants Premaitha Health Plc and Premaitha Limited.
DR. MICHAEL TAPPIN QC and MR. JOE DELANEY (instructed by Herbert Smith Freehills LLP) appeared for the Defendant Ariosa Diagnostics, Inc. and (instructed by Clyde & Co LLP) appeared for the Defendants TDL Genetics Limited and The Doctors Laboratory Limited.
Crown Copyright ©
MR. JUSTICE HENRY CARR :
Legal Principles – Abuse of Process
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole."
"The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party."
"It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
"It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the Court from abuse and the defendant from oppression."
"(i)Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
(ii)A later action against B is much more likely to be held to be an abuse of process than a later action against C.
(iii) The burden of establishing abuse of process is on B or C as the case may be.
(iv)It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
(v)The question in every case is whether, applying a broad merits-based approach, A's conduct is in all the circumstances an abuse of process.
(vi)The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C."
"The cases on this aspect of abuse of process include many reminders that a party is not likely to be shut out from bringing before the court a genuine cause of action. That point is now underwritten by Article 6 of the European Convention on Human Rights, but I do not think that this Article changes English domestic law at all. It is consistent with the Article to allow the court to strike out a claim which is an abuse of process, but at common law it must be clearly shown to be an abuse before it can be struck out. The court must consider, critically, any suggestion that a particular cause of action should not be allowed to be asserted because of the bringing of another proceeding based on a different claim."
"The deputy judge was clearly conscious that he had to be jealous to ensure that a genuine claim could be brought and it would only be appropriate to strike out the claim as a Henderson v Henderson abuse in a rare or exceptional case."
"25 …However desirable it may be for a party to bring all his claims forward in one go, the abuse principle, as the judgments in Stuart  1 WLR 823 underline, does not bar a claim simply because someone fails to raise a claim when he could have done so. The facts must be such that the second action amounts to an abuse of process before it can be struck out.
26 The importance of the general principle that every person with an arguable claim should be able to pursue it in court is enshrined in Article 6 of the European Convention. As Sir Anthony Clarke MR indicated in Stuart  1 WLR 823, paragraph 98, if the court is not satisfied that a claimant's attempt to raise his claim is actually abusive in the light of his previous failure to raise it, the claim cannot be barred from proceeding however desirable it might have been for the claimant to have raised it earlier."
"…I consider that delay of itself is not relevant to whether the second claim is an abuse of process. Delay may be met with a defence under the Limitation Act 1980, or an equitable defence such as laches. Absent any such factor, the mere fact that the claimant has brought his second claim late, but in time, is not relevant to the question whether bringing the new claim in a second set of proceedings is an abuse of process. Of course, things may have happened during the period of delay which are relevant, but nothing of that kind is relied on in the present case."
"As for the relevance of a claimant's failure to use what the court might consider to be reasonable diligence in finding out facts relevant to whether he has a possible claim, it may be that this could possibly be relevant to the inquiry described by Lord Bingham, depending on the circumstances. On the other hand, it does not seem to me that there can be a general principle that a potential claimant is under a duty to exercise reasonable diligence, not yet having brought proceedings asserting a particular claim, to find out the facts relevant to whether he has or may have such a claim. Moreover, I do not see how it can be relevant at all that the claimant may have failed to use due diligence in attending to his own interests at the time of the transaction or the events giving rise to the claims asserted. Unless, on the merits, that is a complete and inevitable defence to the claim, it seems to me to be entirely irrelevant to the inquiry which is necessary under Johnson v Gore Wood &Co  2 AC 1. Nothing in Wigram V-C's observations in Henderson v Henderson 3 Hare 100 supports that. That, however, is the context of the master's comments on lack of reasonable diligence. If relevant at all, an inquiry as to any suggested lack of diligence on the part of the claimant would have to involve considering the circumstances of the particular claimant, including what knowledge he did have of the facts at any relevant stage, in order to decide whether he knew enough to put him on inquiry so as to try to find out more. In this context, as generally, it is also relevant that the onus is always on the defendant to show that the claimant's conduct is an abuse of process."
"29. I also wish to add a word as to the approach that should be adopted if a similar problem arises in the future. In circumstances such as those that arose in this case, the proper course is to raise the issue with the court. Aldi did write to the court, as I have set out at paragraph 2(xiii), but not in terms that made it clear what the court was being invited to do. WSP and Aspinwall knew of Aldi's position and were before the court on numerous occasions; they did nothing to raise it.
30. Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi's claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have enquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation.
31. However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future."
"For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the CPR, namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated."
"Secondly, as Aldi Stores Ltd case again makes clear and as Sir Anthony Clarke MR stresses, a claimant who keeps a second claim against the same defendant up his sleeve while prosecuting the first is at high risk of being held to have abused the court's process. Moreover, putting his cards on the table does not simply mean warning the defendant that another action is or may be in the pipeline. It means making it possible for the court to manage the issues so as to be fair to both sides."
Application of the Legal Principles – Abuse of Process
Prejudice to Premaitha
"A fraction of a sample of the blood plasma or serum of a pregnant woman in which, as a result of said sample having been submitted to a DNA extraction, followed by a size separation, of the extracellular DNA, the extracellular DNA present therein substantially consists of DNA consisting of 500 base pairs or less."
"These size separation strategies allowed for modest enrichment, perhaps increasing foetal fraction by 50%. This was relative, so a starting foetal fraction of 5% might be enriched to 7.5%. Other methods tried included fixing maternal leukocyte fraction by use of formaldehyde. However, this method was controversial and not generally accepted."
Prejudice to Ariosa and TDL
"I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring an action in a different way) can make the action impermissible. If an action can be properly brought, it is the duty of the state to provide the necessary resources; the litigant cannot be denied the right to bring a claim (for which he in any event pays under the system which operates in England and Wales) on the basis that he could have acted differently and so made more efficient use of the court's resources."
"The eligibility criteria for the [Warwick] review did not specify the DNA quantitation methods (next generation sequencing or microarrays).
However, all NIPT services included in the evidence at the time of the review utilised next-generation sequencing technologies. Therefore, the Warwick review of evidence did not include assessment of any NIPT testing services using a microarray approach.
In light of this, only services using a next generation sequencing methodology are eligible to bid for provision of NIPT as an additional option on the NHS FASP screening pathway for Down's, Edwards' and Patau's syndromes."
"It has therefore been apparent since at least June 2015 that the Warwick review only assessed next-generation sequencing technologies and that since February 2018 at the latest, the NHS had expressed a strong preference for sequencing based NIPT solutions for the NIPT pilot programme."
"It is therefore unclear to me why Dr. Levett believes that TDL has a very high prospect of bidding successfully for the NIPT part of the tender."
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue."
"A decision will create an issue estoppel if it determined an issue in a cause of action as an essential step in its reasoning. Issue estoppel applies to fundamental issues determined in an earlier proceeding which formed the basis of the judgment."
"The determinations which will found an issue estoppel may be of law, fact, or mixed fact and law."