2024 Week 15
The week saw the Court of Appeal issue its decision on public access to court file documents in the Ocado v. Autostore case. We set out the background to the issues in a previous blog. A member of the public requested access to the statement of claim in the case, citing a broad public interest in such documents being available, to allow for public scrutiny of the UPC system.
The majority of the written decision of the Court of Appeal is given over to a different question – whether the Court could comprise only three legally qualified judges, or whether there should additionally be two technical qualified judges. The court decided that when dealing with purely procedural matters such as the one at hand, three legally qualified judges would suffice.
Turning to the eagerly anticipated decision about access to documents, the Court reached a conclusion that tries to navigate a path between full and real-time transparency of court proceedings and total privacy for the litigating parties.
The UPC Rules of Procedure require that a member of the public seeking access to the documents must file a reasoned request. The Court decided that this must be more than simply presenting a list of the documents requested. The request must explain the purpose of the request and why access to the documents is necessary for that purpose.
The Court accepted that there is a general principle that the court proceedings (including the written proceedings) are public. However, the interests of the member of the public seeking access to the documents must be weighed against competing interests, specifically:
(i) the protection of confidential and personal information
(ii) the general interest of justice
(iii) the general interest of public order.
The protection of confidential and personal information is not controversial. The UPC Rules of Procedure set out the approach for ensuring protection of such information.
The Court had some interesting comments about the general interests of justice and public order. In relation to the general interest of justice, the decision places a significant weight on protecting the integrity of the proceedings. What does this mean? The Court went on to explain:
The protection of the integrity of proceedings ensures that the parties are able to bring forward their arguments and evidence and that this is decided upon by the Court in an impartial and independent manner, without influence and interference from external parties in the public domain. The interest of integrity of proceedings usually only plays a role during the course of the proceedings. [Emphasis added]
We will come back to this statement later.
The Court drew a distinction between making a request for access in relation to ongoing proceedings and in relation to proceedings which have concluded. Where proceedings have concluded, a request for access to the documents will typically be allowed even where the given reason is only a general interest in scrutinising the procedure and decisions of the UPC. A useful comment from the Court was that access to the documents would typically be granted even where the parties have settled the dispute. Also, where there has been a decision on the merits from the UPC court of first instance, and an appeal has been filed, access to documents in those first instance proceedings may be permitted.
Where proceedings are ongoing, the presumption seems likely to be against granting access to the documents based on a general public interest argument. However, there may still be a way to get access to documents in such circumstances. Here, the threshold is higher – the party requesting access will need to show stronger reasons. The Court suggests that a direct legitimate interest would be needed, such as being a competitor concerned with the validity of the patent or being at risk of similar infringement proceedings. Where access is granted for ongoing proceedings, the court may impose confidentiality requirements on the party accessing the documents, setting restrictions on how the information is subsequently used.
The outcome of this appeal was that access to the documents was granted. This was because the proceedings had been concluded and that therefore the general public interest reasoning for requesting access was sufficient. Had the infringement proceedings been ongoing, it seems clear that the Court would have decided not to grant access, on the basis that the party requesting the documents could not demonstrate a direct legitimate interest.
So, where does this leave us? For now, we have some clarity on public access to documents in UPC proceedings. Access will depend on timing – on the stage of the proceedings. In effect the timing of the request for access will determine to a large degree the success of the request.
Access may be difficult in practice while proceedings are ongoing. It would perhaps be a brave competitor who requests access to court documents based on a clear acknowledgment of an interest in the validity of the patent or a concern about future infringement proceedings. However, perhaps for a party who had opposed the patent at the European Patent Office, it may be far easier to demonstrate a direct legitimate interest in accessing UPC proceedings on the same patent.
Access will be straightforward once there is a decision on the merits of the case from the Local, Regional or Central Division of the UPC.
It is a little difficult to understand the attitude of the Court of Appeal in relation to the integrity of proceedings (see the extract from the decision above). They worry that laying open the pleadings and evidence in ongoing UPC litigation risks attempts by external parties to influence and interfere with the decision-making of the court. It is not clear that this is a problem in other jurisdictions where such access is routine. Perhaps this is an attempt to protect the UPC while it is still in its very early stages of development. The approach of the Court of Appeal also risks a strange situation. The trial itself will normally be open to the public. However, following the logic of this decision, members of the public who attend the trial will be in the unsatisfactory situation of not being permitted to access the documents setting out the basic arguments and evidence underpinning the case being tried in front of them.
We will provide updates when there are further developments in this important area.
