UPC: ‘A missed opportunity’ as intervention bids in key disclosure case are thrown out

The UPC Court of Appeal ‘narrowly’ interprets law in transparency test case | Court dismisses interventions by two law firms due to “legal interest” rules | Order sets high bar for intervention in UPC cases | Concerns over transparency persist; final decision expected in spring 2024.

The Unified Patent Court (UPC) Court of Appeal has dismissed attempts by Mathys & Squire and Bristows to intervene in a critical test case relating to the public’s access to court documents.

This latest decision comes as questions over the court’s transparency have dogged UPC judicial divisions in recent months.

Narrowly-defined circumstances

Commenting on the development, Alexander Robinson, partner at Mathys & Squire, said: “While we are naturally disappointed, the Court of Appeal’s order sets an important precedent.

“It means that interventions in proceedings at the UPC will only be allowed in narrowly-defined circumstances, similar to the Court of Justice of the European Union’s (CJEU) approach,” he added.

For Myles Jelf, partner at Bristows, the decision represents “a missed opportunity”.

“The basis of our intervention was that given the emerging nature of the case law—and this being the first appeal on the topic—we had a legal interest in being heard in this appeal,” he told WIPR.

“At this early stage of the UPC, we also thought that the court might be interested and willing to entertain third party briefs on an almost amicus basis to give it the best chance of seeing a wide set of perspectives as it developed the case law—given that unlike other courts, the UPC doesn't appear to have any mechanism for such briefs.”

But the court saw things differently.

“The Court of Appeal, while being willing to consider the application, ultimately concluded that there needed to be a legal interest in the particular case in hand rather than a wider legal concern.

“ I feel that is a bit of a missed opportunity on the Court's part, but in fairness it may be that they are thinking to the future and don't want to face intervention applications in every appeal,” added Jelf.

The closely-watched case emerged when the UPC’s Nordic-Baltic division granted a request to access documents filed at the court in a patent infringement action between Ocado and Autostore.

However, access was stayed after Ocado asked the UPC Court of Appeal to overturn that decision, which conflicted with a narrower view taken by the UPC’s Central Division in Munich requiring members of the public to prove a “legitimate reason” for viewing such documents.

Intervention attempts

In November, Mathys & Squire applied to intervene in the appeal on the basis that the Court of Appeal’s decision is likely to determine the fate of a separate application for access to documents that the firm has filed before the UPC’s Central Division.

Similarly, Bristows applied to intervene in the Ocado documents access appeal in December after it filed for access to documents at the UPC’s local division in The Hague.

However, in its ruling delivered late last week, the Court of Appeal interpreted the grounds on which third parties can intervene in an appeal narrowly—limiting applications to where a third party has a direct interest in the wording of an order which the court might issue.

Mathys & Squire and Bristows’ applications to intervene were consequently rejected on the grounds that an interest in a decision based on “similarity between two cases” was insufficient.

A ‘worrying’ oversight

Since the order, Mathys & Squire has complained that it was not given access to the submissions filed by Ocado’s counsel.

“More worryingly,” the firm insisted, “the order issued by the Court of Appeal refers to submissions which were made on behalf of Ocado which the Court appears to have relied upon, but which were not forwarded to Mathys & Squire’s representatives.”

Commenting on this turn of events, Nicholas Fox, partner at Mathys & Squire, said: “We assume that this is an oversight, and we are requesting copies from the Court.

“If that request is denied it will send troubling signals about the court’s attitude to transparency.”

However, the decision was welcomed in other quarters, particularly by Powell Gilbert—the law firm behind the application to overturn the Nordic-Baltic division’s decision on behalf of Ocado.

‘Direct legal interest’ is pivotal

In that successful submission, the firm argued that the appropriate test for interventions in the UPC should follow the case law of the CJEU and several other contracting member states in relation to interventions and that, under that test, the law firms’ proposed interventions should be considered inadmissible.

As Tom Oliver, partner at Powell Gilbert told WIPR: “In one of the few reasoned decisions which the UPC’s Court of Appeal has given, it held that an interest in the points of law being considered in UPC proceedings was insufficient basis to permit an intervention, as was any similarity between the proposed intervener’s situation and that of one of the parties.

“The Court of Appeal held that a direct legal interest is needed for an intervention to be admissible.”

It marks, as Oliver put it, “the final position” regarding interventions in UPC proceedings, effectively ensuring that admissible interventions “will be relatively rare” in future proceedings.

“In the present case, the UPC Court of Appeal has brought much needed clarity on whether it will be appropriate for third parties to seek to intervene in ongoing UPC proceedings.”

Also commenting, Christopher Stothers, partner at Freshfields, the lawyer who filed the initial request in Ocado back in August, made a renewed call for greater transparency at the UPC.

“I remain of the view that transparency of the system is of broader public interest than that of the parties, and would have welcomed the two proposed interventions,” he said.

For Mike Gilbert, partner at Marks & Clerk, the decision was not a surprising result “given the express requirements” that should be met under the UPC rules for a party to intervene.

“Indeed, these rules, as now interpreted by the UPC Court of Appeal, are not dissimilar to the requirements in the UK to add a party (an intervener) to national proceedings,” he explained..

“Applications to intervene have failed in the UK in the past when applications have been made purely to enable the intervener to make pleas in law in other proceedings rather than having any actual and direct interest in the outcome of the proceedings in which they are seeking to intervene.”

Spring transparency requests expected

But this latest decision is by no means the end of the story: the appeals court has yet to deliver its much anticipated ruling on whether the Nordic-Baltic division had erred in granting Stothers access in the first place.

As Gilbert explained: “It is likely that the real dispute about transparency and access to documents (as opposed to a satellite dispute about intervention) will arise now either in the context of the Ocado proceedings themselves, or in the Munich and Dutch court proceedings. ”

While that is expected to land in springtime, it seems that the appeals court’s position on interventions has paved the way for even more questions in the meantime.

As Stothers explained, several applications for access have already been stayed pending the outcome of this appeal. “In the light of this decision regarding intervention, it may be that those stays should be lifted, or that future applications should not be stayed,” he explains.

Speed and transparency

For example, Mathys & Squire has said that the Munich division has stayed its application to access documents pending the outcome of the Ocado and Autostore appeal.

The firm expressed further disappointment over the speed and transparency of the court when it came to reviewing the question at the heart of Ocado itself—on what basis a member of the public has a right to access public documents.

In a statement released to WIPR, the firm pointed out that although the UPC Court of Appeal was to hold oral proceedings on Ocado in mid-February, the hearing has now been rescheduled for mid-March and any decision by the court is unlikely to be issued before April.

“This means that it will have taken over six months for the UPC to process what should be an administrative request for access to court documents,” said the firm.

According to Mathys & Squire, 13 applications for access to court documents have been filed since the UPC opened in June. Two of those requests have been rejected, leaving 11 still pending.

To date, none of the applications have resulted in members of the public having sight of evidence and pleadings present in the court files.

Mathys & Squire said that it had provided copies of materials to support Stothers’ arguments in “defence of the public interest in judicial transparency” in Ocado, “and wished him the best of luck”.

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