Case Nos: CA-2024-000489, CA-2024-000498, - [2025] EWCA Civ 1263

This appeal relates to the proper scope of redactions of a non-party’s confidential information in a FRAND judgment. The case is about the judgment of Marcus Smith J ([2023] EWHC 1095 (Ch)) dated 10 May 2023. That decision resolved a dispute between Optis and Apple concerning the terms of a Fair Reasonable and Non-Discriminatory (FRAND) licence from Optis to Apple of a portfolio of patents held by Optis which are or are said to be essential to certain mobile telecommunications standards (so called Standards Essential Patents or SEPs). Those findings were appealed to this court (Newey, Arnold and Birss LJJ) and are addressed in the public judgment on the main appeal at [2025] EWCA Civ 552 dated 1^st May 2025.

In the proceedings disclosure was given of various patent licences between Optis or Apple on the one hand and other companies on the other. These other companies were not parties to these proceedings. They have been referred to in this case as third parties and I will refer to them as such, although they were not additional parties within the terms of Part 20 of the Civil Procedure Rules. They are parties to these appeals but that is all.

The third party licences were relevant and some of the terms are referred to in the full version of the judgment, which is confidential. That full version was sent in draft to the parties in March 2023 under embargo and the final form was handed down in private to the parties on 10 May 2023. There was a further full version on 17 May 2023 but nothing turns on that. A non-confidential version of the full judgment was handed down in public on 7 June 2023. All potentially confidential material had been redacted, erring on the side of caution. It took time to address the proper scope of the final redactions, which included submissions and evidence from some of the third parties. The issues were resolved in a judgment dated 14 February 2024 ([2024] EWHC 197 (Ch)) which held that a “less-redacted” version of the public judgment should be published. As its name suggests, the less-redacted version still redacted some information in the full judgment but the redactions were less extensive than in the public version handed down in June 2023. The form of that less-redacted judgment was settled and it was annexed to the order dated 17 June 2024. The publication of the less-redacted judgment was stayed pending any appeal, if permission was granted. Neither party to the proceedings – i.e. neither Optis nor Apple – sought permission to appeal at this stage. They both maintained a neutral stance. A number of third parties did seek permission to appeal. Other third parties, including at least one who had made submissions, did not. Permission to appeal was given by Falk LJ on 27 September 2024.

The main appeal having been heard and decided earlier this year, this confidentiality appeal came on to be heard on 9 July 2025. During the hearing it became clear that to deal with this matter properly and fairly, the third party appellants needed to amend their grounds of appeal. In addition Apple served an appellant’s notice, essentially to address the position of information relating directly to other third parties who were counterparties to licences with Apple but had not appealed. The reason there is no corresponding appellant’s notice from Optis is simply because the only counterparty to an Optis licence with relevant confidential terms is Google, who had already appealed. We gave permission for these amendments and for the fresh appellant’s notice to be filed out of time.