When the UPC was set up, a basic tenet was set out in Article 45 of the UPC Agreement, that the court proceedings would be public. This was intended not only to apply to trials, but also to the written stage of proceedings. The UPC agreement also provided the court with discretion to make parts of the proceedings confidential where necessary.
In addition to requiring that decisions and orders of the court are published, the Rules of Procedure of the UPC (RoP) require that written pleadings and evidence lodged at the court shall be available to the public on a reasoned request. The key word here is reasoned. The parties have the right to be consulted on whether these documents contain confidential information.
We are seeing something of a struggle between two competing points of view, based on national traditions. On the one hand, the courts of some UPC countries such as Germany have long taken the view that commercial litigation between parties is essentially private, and so there is a high barrier for third parties to access the court file. On the other hand, the courts of some other countries have a bias towards transparency in judicial proceedings.
In October 2023, Mewburn Ellis colleague Eliot Ward reported on the ability of third parties to access documents from the UPC case file, such as the written pleadings and documentary evidence. A judge at the Munich Central Division had taken the view in two cases, Astellas Institute v. Healios and Amgen v. Sanofi that there is a high bar to a third party gaining access to written pleadings and evidence. A concrete, verifiable and legally relevant reason would be needed before the court would grant access to the documents, even if neither claimant nor defendant asserted that these documents contained confidential information. Specifically, reasons based on education and training and based on an abstract interest in the patent at issue and its legal validity were considered not to be legitimate reasons, and so access to the documents was refused.
More recently, a different division of the UPC (the Nordic-Baltic Regional Division) in Ocado v. Autostore granted access to such documents. In that case, in fact the proceedings settled in September 2023. Still, the court needed to reach a decision on access to the written pleadings by a third party. The court in that case decided that reasoned request merely required that the third party needs to provide a credible explanation of why they require access to the documents. In effect, the reasoning provided by the third party was similar to that used in the Munich Central Division. Provided that certain personal information was redacted form the documents (to protect confidentiality), the Nordic-Baltic Regional Division granted access to the documents, setting it at odds with the earlier decisions.
Also, in December 2023, the Milan Local Division granted access to documents to a third party, in the case Progress Maschinen & Automation v. AWM and Schnell. In that case, the documents concerned an application for preservation and inspection of evidence (saisie application). The reason given by the third party was that it would be of public interest to see how the saisie application was worded and argued.
The Ocado v. Autostore and the Munich Central Division cases are now subject to appeal. The Court of Appeal has dealt with several preliminary points and held a hearing (on 12 March 2024) on the merits of the request for access in the Ocado v. Autostore case.
Looking forward
Our hope is that the Court of Appeal takes the view that the principles of transparency of UPC proceedings should prevail, particularly in these early days of operation of the UPC.
On one of the preliminary points in Ocado v. Autostore, the Court of Appeal has surprisingly ruled that a third party seeking access to court documents must be represented by a UPC representative. We say “surprising” because none of the parties appeared to be arguing this position. The Court of Appeal reviewed the relevant provisions of the RoP and reached the conclusion that a UPC representative is required in these circumstances. It appears that at least part of their reasoning is to ensure the proper conduct of proceedings, in a practical sense. They also said that the requirement for a reasoned request for access to the court file documents indicated that it would be appropriate to require a representative to argue this.
For any party wishing to see documents from a UPC case file, it is therefore necessary to appoint a UPC representative. This requirement imposed by the Court of Appeal seems unlikely to be changed in the near future. If you need assistance in gaining access to such documents, Mewburn Ellis can represent you in all UPC proceedings – please be in touch with your usual Mewburn Ellis contact.
The Court of Appeal has indicated that the decision on the substance of the request for access to documents will be given at the end of April 2024. We will provide an update then.
