Documents - restricted use in one set of proceedings - not necessarily restricted in another set of proceedings

SmithKline Beecham plc v Generics (UK) Ltd; BASF AG v SmithKline Beecham plc (Generics (UK) Intervening): CA (Lords Justice Aldous, Chadwick and Latham): 24 July 2003

S plc was the patentee of a UK patent relating to a pharmaceutical product it sold in large quantities.

In 2001, S plc started proceedings against G Ltd for infringement of the patent.

Around the same time, BASF commenced proceedings to revoke the patent on similar grounds to those raised by G Ltd.

The proceedings against G Ltd and by BASF came on for hearing at the same time.

S plc and G Ltd settled on the first day.

On the second day, S plc sought permission to use two sets of documents which had been disclosed by G Ltd in the BASF proceedings.

The judge admitted the documents in the BASF action on terms that they would be dealt with in private, and made an order under CPR rule 31.22(2).

In the BASF action, the patent was held to be partly valid, and that decision was upheld by the Court of Appeal.

In the meantime, S plc started proceedings against A Ltd alleging infringement of the patent.

S plc considered the documents which were the subject of the order to be of importance, and wrote to the judge explaining that it considered that it might by necessary for it to make an application in the A Ltd proceedings to allow it to admit the documents.

The application was scheduled for hearing on 30 June 2003.

However, on 27 June, the judge gave judgment on G Ltd's application permanently to prevent use of the documents.

There followed a hearing on S plc's application to be allowed to use the documents in the A Ltd proceedings.

On 30 June, the judge dismissed that application.

Justin Turner and Geoffrey Pritchard (instructed by Simmons & Simmons) for S plc; Simon Thorley QC and Thomas Hinchcliffe (instructed by SJ Berwin) for G Ltd.

Held, dismissing the first appeal and allowing the second appeal, that the interests of the owners of the documents could be protected by an order under CPR 31.17 and refusal of use could reflect adversely on the administration of justice; that in those circumstances the documents should be released from the CPR rule 31.22(2) order for use in the A Ltd proceedings, with an order protecting the interests of the owners of the documents in the way that the judge did in the BASF proceedings.

Jurisdiction - High Court decision on appeal from justices by way of case stated in civil matter - Court of Appeal having no jurisdiction to hear appeal

Westminster City Council v O'Reilly and others: CA (Lord Woolf Chief Justice, Lords Justice Auld and Clarke): 1 July 2003

The council appealed by way of case stated, pursuant to section 111 of the Magistrates' Courts Act 1980, against the decision of the licensing justices to grant the licensees a final special hours certificate in respect of the whole of their premises.

Mr Justice Mackay [2003] EWHC 485 (Admin); [2003] 1 WLR 1411 held that under section 77A of the Licensing Act 1964, as amended by the Deregulation (Special Hours Certificates) Order 1996 and the Deregulation (Casinos) Order 1997, the certificate should not have applied to the whole premises but only to that part of the premises covered by a music and dancing licence, allowed the council's appeal but granted the licensees permission to appeal.

John Saunders QC (instructed by Jeffrey Green Russell) for the licensees; James Rankin (instructed by the Director of Legal Services, Westminster City Council) for the council.

Held, declining to entertain the appeal, that under section 28A of the Supreme Court Act 1981, as amended by section 61 of the Access to Justice Act 1999, a decision of the High Court on an appeal by way of case stated under section 111 of the 1980 Act, which was not on any criminal cause or matter, was final; that, under section 18 of the 1981 Act, no appeal lay to the Court of Appeal from any decision of the High Court which was final; that nothing in sections 54 and 55 of the Access to Justice Act 1999 or article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 altered the clear ouster of the Court of Appeal's jurisdiction in such circumstances; and that, accordingly, the judge's decision in favour of the council was final and the Court of Appeal had no jurisdiction to hear an appeal against it.

(WLR)

Judicial review - limited permission granted at contested hearing - claimant with good reason permitted to pursue other grounds at substantive hearing

R (Smith) v Parole Board: CA (Lord Woolf Chief Justice, Lords Justice Auld and Clarke): 30 June 2003

A prisoner sought permission to seek judicial review of the Parole Board's decision to refuse to allow him an oral parole recall hearing.

At a contested oral hearing, the prisoner was granted permission to argue grounds relating to article 6 of the European Convention on Human Rights but refused permission to argue grounds relating to article 5.

At the substantive hearing, the claimant applied, pursuant to CPR rule 54.15, for permission to argue the article 5 grounds.

The judge refused the application.

The claimant appealed.

Anthony Scrivener QC and Sharon Watson (instructed by Rooney & Co, Birkenhead) for the claimant; Jonathan Crow and Parishil Patel (instructed by the Treasury Solicitor) for the Parole Board.

Held, allowing the appeal, that the broad discretion which a judge had on an application under rule 54.15 was that indicated by Mr Justice Lightman in R (Opoku) v Principal of Southwark College [2002] EWHC 2092 (Admin); [2002] Gazette, 14 November, 33; [2003] 1 WLR 234, paragraph 14; but that there did not need to be a new legal or factual situation before such an application could be granted; that any judge would require substantial justification before allowing an argument to be advanced on which permission had been refused at a contested oral hearing but, if there were good reason for so doing, the judge could give permission for that to happen; that the article 5 point was closely interrelated to the article 6 point and it was highly undesirable that one should be considered without the other; and that, accordingly, the claimant would be given permission to argue the article 5 point.

(WLR)