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England and Wales High Court (Patents Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Pfizer Health AB & Anor v Schwarz Pharma AG & Ors  EWHC 3236 (Pat) (08 December 2010)
Cite as:  EWHC 3236 (Pat),  FSR 14
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Strand, London, WC2A 2LL
B e f o r e :
| (1) PFIZER HEALTH AB
(2) PHARMACIA LIMITED
|- and -
|(1) SCHWARZ PHARMA AG
(2) SCHWARZ BIOSCIENCES GmbH
(3) SCHWARZ PHARMA LIMITED
|- and -
|STRICKLAND (LEGAL) LLP
The claimants and defendants did not appear.
Hearing date: 12 November 2010
Crown Copyright ©
Mr Justice Floyd :
"Upon payment of the prescribed photocopying fees, copies of the any and all documents on the court file in these proceedings shall be made available to Strickland LLP from the court records"
i) Baker & Mckenzie replied on 10th September 2010, confirming that their clients, from whom they had now taken instructions, would not object to the application. They have subsequently clarified that their consent was limited to documents currently on the court file, which they had themselves inspected, as they were entitled to do without permission.
ii) Bristows replied on 28th September 2010. Their position was that the consented to the provision of any non-confidential documents on the court file.
"A person who is not a party to proceedings may:
(1) unless the court orders otherwise, obtain from the records of the court a copy of a claim form, but not any documents filed with or attached to or intended by the claimant to be served with such claim form, subject to paragraph 4A.3 and to any order of the court under paragraph 4A.4; and
(2) if the court gives permission, obtain from the records of the court a copy of any other statement of case."
"(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; …"
"A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person."
The approach to the application
"The first thing to notice about rule 5.4(2) is that it does not give the general public an unfettered right of access to the court records. On the contrary, it proceeds of the footing that … there is no right of access to the court files without permission."
"32. It is necessary therefore to go back to the rules to see what they provide. In my view it is clear from the language of rule 5.4(2) that the court's permission is required before a search may be made for any document which, if found, may then be inspected and copied. I think this makes it clear, even without recourse to the practice direction, that the documents which the applicant wishes to be allowed to look for must be identified with reasonable position. The rule clearly does not contemplate permission to inspect the file as a whole. What it contemplates is permission as a necessary first step to search the record for a particular document or documents. It is difficult to see on what basis the court can exercise its discretion to permit a search unless the applicant has first identified which documents it wishes to search for.
33. It is no surprise, therefore to find the paragraph 4.4 of the practice direction expressly requires the applicant to identify the document in respect of which permission is sought…
34. I agree, however, that the need to identify documents with reasonable precision does not preclude an applicant seeking permission to search for, inspect and copy a class of documents… What is necessary, in my view, is that the documents be identified with sufficient particularity to enable the court properly to consider all the relevant factors when exercising its discretion. Thus, an application to inspect "the pleadings" is likely to be acceptable because it is unlikely that different considerations will apply in relation to individual documents within that class. On the other hand, an application to inspect "the witness statements" may well be too broad because different factors could well apply to individual documents within that class."
"It could be argued that the principle of open justice demands that the court records be open to all and sundry as a right in order to enable anyone who wishes to do so to satisfy himself that justice was done in any given case. But that has never been the law and it is not what r 5.4 says. I accept that the line of authority on the principle of open justice was not specifically drawn to the attention of Nicholls V-C in Dobson v Hastings, but I am unable to accept that he was not well aware of it. It clearly did not strike him as odd, however, that the court's permission should be required in order to obtain access to the record. The principle of open justice is primarily concerned with monitoring the decision-making process as it takes place, not with reviewing the process long after the event."
"Cases and circumstances vary so widely that any attempt to legislate in detail in advance of access to particular types of documents in particular types of cases across the whole spectrum of High Court litigation would be impossible. So the rules provide, in effect, a general prohibition but with a built-in safety valve: any person may apply, ex-parte, (viz, with the minimum formality and expense) to the court for leave. The court will then consider all the circumstances."
"56. In the present case, although Alfa is not interested in whether justice was properly administered in the Dian case, I think it does have a legitimate interest in obtaining access to documents on the court record in so far as they contain information that may have a direct bearing on issues that arise in the litigation in the Caribbean….I think that in the case of documents that were read by the court as part of the decision-making process, the court ought generally to lean in favour of allowing access in accordance with the principle of open justice as currently understood, notwithstanding the view that may have been taken in the past about the status of hearings in chambers.
57. On the other hand, I do not consider that the court should be as ready to give permission to search for, inspect or copy affidavits or statements that were not read by the court as part of the decision-making process, such as those filed in support of, or in opposition to, the application for summary judgment in this case. These were filed pursuant to the requirements of the rules but only for the purposes of administration. The principle of open justice does not come into play at all in relation to these documents. I do not think that the court should be willing to give access to documents of that kind as a routine matter, but should only do so if there are strong grounds for thinking that it is necessary in the interests of justice to do so."
i) There is no unfettered right to documents on the court file except where the rules so specify: Dian at ;
ii) The requirement for permission is a safety valve to allow access to documents which should in all the circumstances be provided: Dobson v Hastings at page 406;
iii) The principle of open justice is a powerful reason for allowing access to documents where the purpose is to monitor that justice was done, particularly as it takes place: Dion at 
iv) Where the purpose is not to monitor that justice was done, but the documents have nevertheless been read by the court as part of the decision making process, the court should lean in favour of disclosure if a legitimate interest can still be shown for obtaining the documents: Dion at ;
v) Where the principle of open justice is not engaged at all, such as where documents have been filed but not read, the court should only give access where there are strong grounds for thinking that it is necessary in the interests of justice to do so.
The present application
ii) Counterclaim and amended counterclaim for invalidity.
iii) Grounds and amended grounds of invalidity.
iv) Applications for directions.
v) Documents relating to "experiments".
Categories (i) to (iii): Pleadings
Category (iv) Applications for directions
Category (v): Documents relating to experiments
Pleadings in amendment proceedings
i) The amended Grounds of Invalidity dated 25th October 2005;
ii) The second witness statement of Stephen Francis Jones, dated 13th February 2006, (but not any exhibit thereto);
iii) The expert report of Dr Robert Wallis, dated 13th February 2006, (but not any exhibit thereto);
iv) The Statement of Grounds dated 29th July 2005 in the amendment proceedings;
v) The Statement of Opposition dated 7th September 2005 in the amendment proceedings.