Disclosure in the IPEC
56.Following the trial, for reasons that will become apparent, I was provided with a transcript of the case management conference in this action. At that hearing MacGregor applied for disclosure of 9 categories of documents held by Coloplast. Category 1 consisted of the documents disclosed in the PCC Action. Categories 2 to 9 were categories of documents mentioned by Mr Svanum in his evidence in the PCC Action plus certain other documents. Mr Austen, for MacGregor, told me that the documents disclosed in the PCC Action were all contained in two or three boxes held by Bird & Bird, the solicitors who had then acted for Coloplast, and that consequently there would be little cost to Coloplast in providing them. 57.As I have mentioned, the PCC Action concerned a different patent. Also, the rules on disclosure in the PCC at the time of the PCC Action were not the restricted disclosure rules which now apply in the IPEC. It was to be expected that the disclosure in PCC Action would have been more extensive than that required in an equivalent IPEC action. 58.In response to MacGregor’s application Dr Baran told me that the documents held by Bird & Bird were in Danish and would have to be translated for Coloplast’s present lawyers to review them and that this would cost £50,000. As for finding and reviewing categories 2 to 9, this would cost a six figure sum. An issue of potential patient confidentiality was also raised. Dr Baran submitted that the disclosure sought by MacGregor sounded like a task greater than preparing for the entirety of the rest of the trial. 59.Having heard quite extensive argument, I ordered disclosure of categories 2-9 sought by MacGregor but only in so far as they were contained in category 1, i.e. to the extent that they were held by Bird & Bird as documents disclosed or disclosable in the PCC Action. That disclosure was subsequently provided by Coloplast. 60.By the time of the trial I no longer recalled the dispute over the scope of Coloplast’s disclosure. In relation to a key issue of fact – whether Coloplast had been told that there was a demand for water-stored catheters – I was shown the analysis of February 1995, the only disclosed Coloplast document relevant to this issue. It was not until I came to write the judgment that I noticed that Mr Svanum’s evidence in the PCC Action had established that there must be other documents held by Coloplast which were highly relevant to this issue. In fact the analysis of February 1995 gave an impression quite different to that of Mr Svanum’s evidence in the PCC Action and the apparent effect of these undisclosed documents. After I had handed down a draft of this judgment, I raised the matter with counsel. They made some preliminary comments and I was sent a copy of the transcript of the case management conference. 61.I was aware of the risk that I might draw a false inference from the difference between what Mr Svanum had said and the impression given by Coloplast’s disclosure. In a further email sent via my clerk I asked the parties to attend a short hearing. I explained that I wished to better understand what had happened. 62.A few days later I was sent a witness statement made by Paul Inman dated 17 October 2018. Mr Inman is a partner at Gowling WLG (UK) LLP, responsible for the conduct of this litigation for Coloplast. Mr Inman’s statement ran through the requests for disclosure from MacGregor, the exchanges at the case management conference and my order. He said that in March 2018 MacGregor had written to Coloplast seeking the disclosure of further documents but that all the documents requested had already been disclosed. 63.This was followed by witness statement dated 19 October 2018 from Sara Ashby, the partner at Wiggin LLP responsible for the conduct of the action on behalf of MacGregor. According to Ms Ashby Coloplast had initially suggested that there should be no disclosure in these proceedings and thereafter when MacGregor repeatedly pressed for disclosure Coloplast had at each stage been highly resistant. In McGregor’s view Coloplast even failed to disclose all the documents which I ordered to be disclosed at the CMC. Apparently only 8 documents were disclosed. 64.Neither party sought a further hearing. Having read these two witness statements I saw no value in one. I am not in a position to resolve whether Coloplast complied with the order for disclosure made at the CMC and it would not be in the interests of procedural economy to pursue the matter. I therefore assume that Coloplast was in full compliance. 65.However, Mr Inman’s statement fails to address the issue I raised. By the time of the trial, and probably well before that, it was clear to the parties that the key issue of fact to be resolved at the trial was whether Coloplast and other manufacturers of catheters knew in September 1997 that users of intermittent catheters wanted a wet-stored catheter. If so, it was likely that by inference the skilled team would have been aware of the idea of a wet-stored catheter at that date as part of their common general knowledge. In opening Dr Baran went so far as to submit that the three cited items of prior art did not advance MacGregor’s case on the common general knowledge (Day 1, p.12). In other words, Coloplast had taken a very clear view that MacGregor’s case was going to stand or fall on whether the idea of a wet-stored catheter was known, irrespective of argument over the cited prior art. 66.In the draft of this judgment provided to the parties before Mr Inman’s statement, I indicated that there was a suspicion that Coloplast had not given disclosure of documents identified by Mr Svanum even though and possibly because Coloplast believed that the documents would have corrected the impression given by the executive summary of February 1995. Mr Svanum’s report strongly implies that those documents would have revealed that by September 1997 Coloplast knew that users wanted a wet-stored catheter. Mr Inman did not state otherwise and has not lifted the suspicion. His statement suggests rather that given the way the case management conference went, Coloplast was advised that highly relevant documents need not be disclosed. I make two observations. 67.First, it is not satisfactory that an order for specific disclosure, however framed, should result in a party concluding that it need not disclose documents which to its knowledge relate to a material and central issue and which it knows to be in its possession. 68.From 1 January 2019 the disclosure pilot for most of the Business and Property Courts will enter into force (see CPR 100th Update, Annex B). All five proposed disclosure models A to E will require disclosure of known adverse documents (as there defined). The pilot will not apply in the IPEC. Nonetheless, hereafter where disclosure is ordered at all in the IPEC it is likely that disclosure will include, as a basic minimum, known adverse documents. Since such documents do not require a search, save in unusual circumstances their disclosure will accord with the IPEC goal of minimising costs. 69.My second observation is that although the IPEC procedure is designed to keep disclosure to the essential minimum – generally, running an increased risk of excluding relevant documents from disclosure is a price well worth paying for the savings in cost and time – this should not be allowed to result in a real likelihood that the court will reach a false understanding of an important issue. The overriding objective, including making sure that the case is heard fairly, must always take precedence. Notwithstanding the IPEC rules, an application for disclosure should be pursued, even after the CMC where appropriate, if it is based on solid evidence, i.e. more than speculation however keenly felt, that documents likely to shed light on an important issue are held by the opposing party. However, such applications must be as narrowly focussed as is reasonably possible. Part of the difficulty over disclosure in the present case may have been a lack of focus by MacGregor.