UPC’s ‘pro-transparency’ ruling welcomed—but does it go far enough?

Lawyers tell WIPR that “pro-transparency” decision still leaves “open questions” | Ruling doesn’t open the door to wide ranging requests for access to documents while legal proceedings are ongoing | Reaction from Freshfields, Powell Gilbert, Mathys & Squire.

The Unified Patent Court (UPC) appeals division has dismissed Ocado's attempts to overturn a decision granting access to documents, in a closely-watched case seen as a gauge of the court's commitment to open justice.

Christopher Stothers, partner at Freshfields, who had filed the request for access before the Nordic-Baltic division in the British multinational’s dispute with Autostore, welcomed the ruling, delivered yesterday, April 10, in Luxembourg.

“The main decision was on transparency and the UPC has taken a broadly pro-transparency approach,” he told WIPR.

“The court held that the pleadings and evidence should be available once there is a first instance judgment or settlement or withdrawal.”

Notably, the court deemed that where a case is pending, access should also be available but that a higher threshold is required—and this may include “a direct legitimate interest” in the subject matter of the proceedings.

Unanswered questions

Despite his victory, Stothers said that some “open questions remain”.

“For example, where does journalistic interest fall in the balancing of interests? And how will costs be handled?” he queried.

However, he lauded the ruling as “a very strong and assured first step” by the court, “with a thoughtful and textured decision”.

For Joel Coles, partner at Powell Gilbert, who opposed Stothers’ request on behalf of Ocado—arguing it conflicted with a precedent barring access delivered by Munich's central division—the court upheld a key precedent.

“The decision would not seem to open the door to wide ranging requests for access to documents whilst the proceedings are ongoing, unless there is some special interest in the documents being made publicly available,” he told WIPR.

“The decision is a welcome clarification of previous conflicting first instance decisions.

Ocado’s position had been in favour of public access to documents where a case had been the subject of a judgment or order, or there was some private interest in the pleadings before any judgment or order.”

The Court of Appeal, he continued, adopted this stance, but “went one step further” in stating that public access to pleadings in settled proceedings—which had not even been the subject of any decision or order, "is also permitted.”

The Court of Appeal’s approach was notable, added Coles, because it did not neatly align with any of the member state’s national approaches, reflecting the court’s independent approach to important issues.

‘Court didn’t go far enough’

Nicholas Fox, partner at Mathys & Squire—who had attempted to submit an intervention in the case—believes that the court should have gone further.

“That the court has finally allowed a member of the public access to UPC pleadings is to be welcomed. But the court’s decision does not go far enough,” he told WIPR.

“Although the court has recognised that there is a general interest in accessing pleadings and evidence, the ruling issued by the Court of Appeal seems to suggest that public interest is only engaged when proceedings have come to an end and not while a case is ongoing.

“As the Ocado litigation had settled before pleadings and evidence were requested, the court’s comments in respect to access to documents in relation to on-going litigation are purely obiter and it will still have to be seen whether the court will permit the general public access to pleadings and evidence while a case is still pending before the court.”

Technical judges issue

During the proceedings, the Court of Appeal also established that for appeals concerning purely legal matters, it is not necessary for the panel to contain two technical judges.

Coles welcomed this clarification, saying: “The Court of Appeal rejected the respondent’s arguments that the failure to appoint technical judges would amount to a breach of Art. 6 of the European Convention on Human Rights (right to a fair trial).”

This was, he said, a sign of ‘the international nature” of the UPC.

“The Court of Appeal regarded the practice of the national courts of several contracting states, including Denmark, Sweden, Finland and Germany. The Court of Appeal’s decision demonstrates a pragmatic approach to the application of the UPC Agreement.”

Stothers said the court has taken a very practical and pragmatic approach on the question of technical judges, which “doesn’t appear to be in line with the black letter of the relevant provisions” but “avoids the need for formal changes while it pursues efficiency”.

“This wasn’t an issue which was the subject of the appeal, but arose late in the case, he said.

“It’s a useful indication of how the judges might tackle similar problems in commercial cases, and is worth reading for that purpose”.

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