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

The relevant part of the February 2024 judgment is Section B from [10] to [57]. In this section at [22] the redactions are classified into 6 classes. The classes now relevant are classes 1, 3, 4 and 5, as follows:

Class 1 (slips) is addressed at [22](i) and [24] to [25]. It is convenient to address this aspect of the appeal after other issues.

Class 3 (lump sums) is addressed from [30] to [44]. Here the judgment draws a distinction between the approach described as the old test ([30]-[35]) and the new test ([36]-[44]). The old test is based on my judgment on the confidentiality redactions in a FRAND case in Unwired Planet v Huawei [2017] EWHC 3083 (Pat) and was followed and applied by Mellor J in June 2023 in InterDigital v Lenovo [2023] EWHC 1577 (Pat). The new testis derived from the judgment of Arnold LJ (with whom Sir Andrew McFarlane P and Elisabeth Laing LJ agreed) in the Court of Appeal in July 2023 in JC Bamford Excavators v Manitou [2023] EWCA Civ 840, based on the Trade Secrets (Enforcement, etc) Regulations 2018 (SI 2018/597).

The judgment characterises the old test as involving a balance of factors to decide what if any information should be redacted, and the conclusion is that if the old test applied then the lump sum figures in class 3 would not be redacted, nor would any of the other information. However, the judgment goes on to hold that this old test has been replaced by the new test, which works in a different way. By the new test if the information falls within the definition of a “trade secret” as defined by the 2018 Regulations then the court is required to redact that information from a judgment without any consideration of a balance. Applying that new test, the class 3 lump sum figures qualify as trade secrets within the 2018 Regulations, and must therefore be redacted without any further consideration.

Class 4 (other terms) is addressed at [45] to [51]. The conclusions are that this information does not qualify as a trade secret and so does not fall within the scope of the new test, requiring redaction. Nor would its publication undermine the protection of the lump sum figures in class 3. Applying the old test, the information was not confidential ([47]). On that basis most of the text descriptions in Annex 3, which describe other terms of the agreements, would be revealed on publication of the less-redacted judgment.

Class 5 (derived data) is addressed at [52] to [53]. The approach taken here is to examine whether publication of the derived data would undermine the class 3 redactions. If it would then it should be redacted, otherwise not. Applying this approach the material conclusions are (a) that the totals and averages in Table 13 can be disclosed ([53](i)) and (b) that the unpacked percentage values in Table 9 do not need to be redacted. The latter conclusion is because the risk that the (redacted) lump sums could be derived accurately by a process of reversing the unpacking exercise (so called re-packing) starting from the percentage values was fanciful ([53](ii)), and inaccurate lump sums produced by re-packing would not be confidential ([53](ii)(a)).