Mann bites lawyers

It's not yet available on BAILII, but you can read it on the IPKat - sage words of rebuke from Mr Justice Mann in Dr Reddy's Laboratories (UK) Ltd v Eli Lilly & Co. Ltd [2007] EWHC 1872 (Pat), back on 30 July 2007. Essentially, says the judge, practitioners and their clients both expect and receive a certain degree of assistance from the courts. BUT, but if this state of affairs is to continue, the court is entitled to expect that they act in a professional and sensible manner and don't waste time and effort in bringing unnecessary disputes before the court.

What actually happened is this: an application was made for directions in a patent dispute. After the court heard the application for directions in the interim applications court, most of the issues were agreed between the parties and the court ruled on the issues which were not. So far, so good. However, the terms under which disclosure was to be given, and the nature of the disclosure itself, was thought to be agreed - but turned out not to be. In essence, could the defendant fulfil its disclosure obligation by simply providing the documents disclosed in United States proceedings, or did it have to carry out some sifting so that what was to be disclosed was only those documents that seemed to be relevant? This question was listed before the court but, very shortly before the court sat, the matter was agreed on the basis that the documents disclosed in the parallel US proceedings were to be listed and not merely disclosed in bulk.

Mann J was not amused. He said:
"1. This is an application in which it turns out that the dispute, whatever it was, had been compromised by the addition to the already agreed wording in relation to disclosure of some words which I will not repeat in this judgment. If there are any further idiotic disputes about this, then the whole of the proceedings can be transcribed so that the words which are to go in are apparent.

2. The only reason that I am saying anything about this agreed resolution of the dispute is that I regard the way in which it has arisen, the manner in which it has been put before the court and the reasons for which it has been put before the court as very unfortunate and, I am afraid, do little credit to the professional teams involved. However, the reason that I am delivering this judgment is not in order to make what would otherwise seem rather a gratuitous point. There is a more significant point about the co−operation between parties and the courts that are expected in these circumstances.

3. I will not go into the history of how the dispute comes back before me. I will say merely this. Roughly two weeks ago, in the interim applications court, I heard an application for directions in this patent action. Most of the issues were agreed and the parties are to be commended for that. There were one or two issues which were not and I ruled upon them. They were issues which needed to be sorted out. One of them was disclosure, and one of the issues was the date for the giving of disclosure. The terms in which disclosure was to be given and the extended nature of the exercise were, as far as I was concerned, agreed between the parties and so I was assured.

4. It turns out that there is a problem about the formulation of those terms. I will not waste even more time in setting out the various apparent disputes between the parties in terms of the formulation. Suffice it to say for these purposes that it seems that, at least immediately before the matter was settled this morning, it would have boiled down to a question as to whether or not the defendants in this case, Eli Lilly and Company, were to be able to fulfil their disclosure obligation by simply providing a whole load of documents disclosed in some US proceedings or whether they had to carry out some sifting so that what was to be disclosed was only those documents that seemed to be relevant. One has to tease that out of various other material because one certainly does not get it from the skeleton arguments which the parties have provided for me.

5. The parties have resolved that issue. What is to be disclosed, so far as there is an extended disclosure exercise going beyond that provided in the Patent Practice Direction, is the category of documents disclosed in the parallel US proceedings, and they are to be listed and not merely to be disclosed in bulk. That is the agreement between the parties. They reached that agreement at some stage very shortly before ten o'clock this morning when I sat. I am afraid it does the parties no credit whatsoever that they reached agreement at this last stage in relation to this issue. It seems to me that what has been happening since the ostensible agreement between them is an ill−focused dispute which has led, in my view, to a completely unnecessary matter being listed before this court.

6. The court is, of course, not unused to matters which turn out to be unnecessary being listed before it, but I know from my experience that the practitioners and the major parties operating in the patent jurisdiction in this country expect and indeed receive a certain amount of assistance from these courts. It is not unknown in fact it is very common in my experience for applications for directions to be listed at ten o'clock before one of the patents judges before the court sits, and that is a matter of assistance to the parties. They are often short matters which can be got out of the way and it enables counsel and solicitors no doubt to appear elsewhere in this building when necessary. It demonstrates a degree of co−operation between the court and the parties and the parties' representatives which all the patents judges sitting in this jurisdiction would wish to see continuing.

7. However, if that is to continue, then the court is entitled to expect that the parties and their representatives for their part act in a professional and sensible manner and do not bring disputes which are unnecessary before this court. It seems to me that the residual dispute between the parties on this issue falls firmly into the category of an unnecessary dispute which it should not have been necessary to place before this court. The result is that my time was wasted in trying to get to the bottom of the dispute when I had one but not both skeleton arguments on Friday evening, and further time was wasted this morning when I had to read the second skeleton argument, which only came in this morning. Mr. Birss has explained that it was impossible to get it to me on Friday because he was not aware until Friday afternoon that the matter was being placed before the court. That fact demonstrates yet further the undesirable manner in which this matter has been allowed to develop.

8. If this sort of conduct were to be replicated on a large scale, then it seems to me the court would find it much more difficult to continue to be able to co−operate with the IP bar, and in particular the patent bar and patent solicitors, patent agents and the major patent clients (and, indeed, the less than major patent clients) in the manner in which it undoubtedly does. Those parties have the benefit of a considerable degree of co−operation and assistance from this court, and the court will expect them for their part to co−operate by resolving issues sensibly beforehand and not creating the situation which has existed in this case, which is the generation of what, to my eyes, is plainly an unnecessary dispute. It was resolved in a manner which was no doubt sensible and which, to my eyes, plainly could have been reached at a time when it would not have required court time to be provided.

9. I hope that the professional parties and indeed the client parties in this case, will learn from this and will take to heart the remarks that are made in this judgment. The remarks are made not in order to encourage hostility or difficulty but in order to foster the degree of co−operation without which sensible disposition of patent business in this court frankly cannot happen.

10. I should say, in fairness to counsel who appeared in front of me, that the degree of difficulty that has been encountered in this morning's case is not typical of the manner in which, in my experience, business is conducted and it is in order to try to preserve that state of affairs that I make the remarks that I do".
IPKat team member Jeremy, who is speaking at a conference today on IP cases that should never have got to court, hopes that the judge's words will be taken to heart. Merpel asks, how about an appeal ...?
Mann bites lawyers Mann bites lawyers Reviewed by Jeremy on Monday, October 08, 2007 Rating: 5

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