Tuesday, 25 September 2012

Discovery is only an option

This blogger might have missed Vernacare Ltd v Environmental Pulp Products Ltd [2012] EWPCC 41 completely if he hadn't been sent a copy of the judgment last week by Judge Birss QC's clerk. It's a 19 July decision in the Patents County Court, England and Wales, which raises no major legal issues -- though it does carry one useful reminder of something that is not always appreciated.

Jurisdictions are sometimes categorised as either being those in which discovery (disclosure) of evidence may be extracted by each party from its adversary -- in which case the cost and complexity of the litigation increase -- or those in which discovery is not available. But the fact that disclosure exists does not mean that the court has to order it. In this dispute, which involved a low-tech patent for disposable washing bowls made of paper pulp, the judge summarised the pre-trial case management arrangements thus, at [4]:
"At the case management conference the order made limited the expert evidence to the issues of obviousness and common general knowledge. There was no disclosure. .. There were time limits on the cross-examination. The limit I set was 45 minutes for each side ..."
Things did not run quite as smoothly as the judge had hoped, though: with the stiff time limits set, the hearing should have been over by lunch -- but an unexpected fire alarm put paid to that good intention.


Anonymous said...

Since this has been touted as a Walker Morris win and indeed their client has in the end managed to design round the patent, it will be interesting to see the costs and damages order as they lost on so many points including all the validity issues

Anonymous said...

Well Walker Morris in a successful outcome in this case. It is now time for Enviromental Pulp Products to put their washbowl production facilities into overdrive and get theose bowls out there! This will save the NHS hundreds of thousands of pounds by moving from the Vernacare washbowl! Unfortunatley this does mean however, Vernacare, who are already losing millions of pounds worh of sales to PH Medisavers ( Vernacare have already lost their litigation case against them), will lose even more money! I fell sorry for the employess whose morale must be at rock bottom seeing that they are heamorrhaging business to this degree