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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Kelkoo v Google  EWHC 1687 (Ch) (21 June 2021)
Cite as:  EWHC 1687 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPETITION LIST (ChD)
7 The Rolls Building
B e f o r e :
Sitting as a Judge of the High Court
| (1) KELKOO.COM (UK) LIMITED
(2) KELKOO SAS
(3) JAMPLANT LIMITED
(4) KELKOO INTERNET S.L.
(5) KELKOO AS
(6) KELKOO SRL
(7) KELKOO NETHERLANDS BV
(8) KELKOO AB
(9) KELKOO DEUTSCHLAND GmbH
(10) KELKOO DANMARK A/S
(11) JOLT LIMITED
|- and -
|(1) GOOGLE UK LIMITED
(2) GOOGLE IRELAND LIMITED
(3) GOOGLE LLC
MR MEREDITH PICKFORD QC and MS LIGIA OSEPCIU (instructed by Herbert Smith Freehills LLP) for the Defendants
Hearing date: 9 June 2021
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 2 pm on 21 June 2021.
HHJ JOHNS QC:
"Documents disclosed in the course of litigation under the CPR to an opposing party may only be used by that party for the purposes of that litigation unless they are read to or by the court, or referred to, at a hearing which has been held in public, the court gives permission or the party who disclosed the document and the person to whom the document belongs agree: CPR 31.22(1). In the vast majority of cases, this rule gives adequate protection against misuse of disclosure documents. It is not uncommon in intellectual property and other types of litigation, however, for highly confidential documents to be subject to more restrictive measures designed to prevent the documents from entering the public domain or being used for collateral purposes"
"39. Drawing all this together, I would identify the following non-exhaustive list of points of importance from the authorities:
i) In managing the disclosure of highly confidential information in intellectual property litigation, the court must balance the interests of the receiving party in having the fullest possible access to relevant documents against the interests of the disclosing party, or third parties, in the preservation of their confidential commercial and technical information: Warner Lambert at page 356; Roussel at page 49.
ii) An arrangement under which an officer or employee of the receiving party gains no access at all to documents of importance at trial will be exceptionally rare, if indeed it can happen at all: Warner Lambert at page 360: Al Rawi at .
iii) There is no universal form of order suitable for use in every case, or even at every stage of the same case: Warner Lambert at page 358; Al-Rawi at ; IPCom 1 at [31(ii)].
iv) The court must be alert to the fact that restricting disclosure to external eyes only at any stage is exceptional: Roussel at ; Infederation at .
v) If an external eyes only tier is created for initial disclosure, the court should remember that the onus remains on the disclosing party throughout to justify that designation for the documents so designated: TQ Delta at  and ;
vi) Different types of information may require different degrees of protection, according to their value and potential for misuse. The protection to be afforded to a secret process may be greater than the protection to be afforded to commercial licences where the potential for misuse is less obvious: compare Warner Lambert and IPCom 1; see IPCom 2 at .
vii) Difficulties of policing misuse are also relevant: Warner Lambert at 360; Roussel at pages 51-2.
viii) The extent to which a party may be expected to contribute to the case based on a document is relevant: Warner Lambert at page 360.
ix) The role which the documents will play in the action is also a material consideration: Roussel at page 49; IPCom 1 at [31(ii)];
x) The structure and organisation of the receiving party is a factor which feeds into the way the confidential information has to be handled: IPCom 1 at .
40. To this I would add that the court must be alert to the misuse of the opportunity to designate documents as confidential. It remains the case that parties should not designate such material as AEO, even initially, unless they have satisfied themselves that there are solid grounds for establishing that restricting them in that way is necessary to protect their confidential content"
"11. At the same CMC, Mann J established a confidentiality regime for the disclosure. Under this regime the parties could designate documents to one of three levels of confidentiality:
i) Attorney's Eyes Only ("AEO"): the parties cannot see or give instructions on the documents, which are only made available to external representatives (lawyers and experts) in the AEO Club;
ii) Highly Confidential Material ("HCM"): documents may be seen by the HCM Club, which includes the AEO Club and up to two representatives of each party, whose identity must be previously agreed;
iii) "Ordinary disclosure materials" governed by the CPR disclosure rules".
"The regime adopted in this case recognised that some, perhaps most, of the documents initially designated AEO were likely to end up being of no or of only peripheral relevance. By allowing lawyers and experts to have access to the documents in the AEO category, an initial filtering exercise was made possible so that the parties themselves could gain access to the documents on suitable terms as required. Such a staged approach to disclosure is, in my judgment, entirely appropriate and in accordance with principle."
"56. Ms Ford made strong complaint about what she asserted were excessive and unreasonable claims of confidentiality made by Google, through its solicitors, which were then progressively reduced in response to requests and protests by Foundem. Mr Turner vigorously rejected any suggestion that Google or its advisors had behaved improperly and pointed out that Foundem, for its part, had made extensive designations of confidentiality in its own disclosure.
57. It is neither necessary nor appropriate for me to comment in this judgment on the particular conduct of the parties in this case and, quite rightly, I was not taken through all the correspondence in which these matters were contested. However, I find that there is an increasing tendency for excessive confidentiality claims to be asserted over documents and information in competition law proceedings, only for those claims to be curtailed or renounced in response to protests from the other side or intervention by the court. It is my understanding that the same is the case in intellectual property proceedings. This is wasteful of time and costs, and it is not the way modern litigation should be conducted."
"54. Contrary to the submissions of Ms Ford, I do not think it is appropriate at this stage to address the position for the rest of the action and as regards the more extensive disclosure that Google may have to provide in the future. For the reasons explained above, trial is still a long way off and disclosure is far from complete. The shape of these proceedings may change significantly. If Google now abandons reliance on the technical evidence relating to LEO/RLEO documents for its pending application and that application should succeed, then the stand-alone claims drop out of the action and it seems likely that many of those documents will no longer be relevant. Further, the outcome of Google's appeal in the EU Courts may have a substantial effect on the future of the action. If Google's strike out application fails, then the Court will then have an opportunity to address the future conduct of the proceedings and the need to protect confidentiality going forward."