Mixed fortunes for hearsay evidence notices served out of time

In today's decision of the Patents Court (England and Wales) in Intervet UK Ltd v Merial, the Queen's University of Belfast and the University of Saskatchewan [2010] EWHC 294 (Pat), Mr Justice Arnold considered at length (at paras 69 to 94) the patentees' application -- opposed by the alleged infringer -- for permission to serve two notices of intention to rely upon hearsay evidence which they had served out of time. Summarising both the legal position and the criteria to be weighed when considering whether to exercise his discretion to allow the application, the judge reminded readers:

"70. Failure to give notice in due time does not of itself mean that the hearsay evidence in question is inadmissible, but it is relevant to (i) the court’s exercise of its case management powers and (ii) the weight to be given to the evidence. So far as (i) is concerned, CPR r. 32.1 gives the court a discretion to exclude admissible evidence. That discretion may properly be exercised to refuse to admit hearsay evidence where there is a failure to comply with the specified time limit".

In this case the judge refused the first application and added that, even if he were to grant an extension of time for service of the notice and admitted the evidence, he would have given it no weight. The second application, made in respect of certain of the alleged infringer's documents, fared somewhat better, though the judge felt that it would be difficult for him to attach much weight to them. The documents were described as being "technical", the judge adding:

"They do not speak for themselves, even when read with the benefit of the technical education I have received during the course of this trial".