Case No. IP-2018-000199

6.Travis McClure was Airbus’s witness of fact. He is the Chief Executive Officer at Centrix. Mr McClure’s evidence should have been limited to a short point. Airbus relied on an allegation of prior use of the invention by reason of the marketing of a fastener called the “E-Nut”. At the CMC Airbus was given permission to file evidence from a witness of fact to deal with the question whether the E-Nut was publicly available before the priority date. Mr McClure gave evidence about that issue. 7.In its skeleton argument for trial, Kwikbolt admitted that the E-Nut had been publicly available before the priority date. It was argued in the skeleton that this issue therefore fell away and that Mr McClure’s evidence as a whole should be disregarded. 8.There was a lot of force in that. My reservation was that among the more expansive sections of Mr McClure’s evidence, he had challenged assertions of fact made by Mr McKay about the E-Nut. The E-Nut was referred to by both experts in their reports by way of discussion of the common general knowledge. I was persuaded at the start of the trial that unless at least those parts of Mr McClure’s witness statement remained in evidence, the balance of evidence regarding the structure and extent of use of the E-Nut might be unfairly skewed in Kwikbolt’s favour. I allowed his witness statement to remain in evidence and invited Mr Vanhegan to cross-examine Mr McClure to the extent that he believed any of McClure’s evidence still to be relevant. 9.This led to the next bone of contention. It concerned Kwikbolt’s use of a bundle of documents for the cross-examination of Mr McClure. I was told that this was not served until the morning of the cross-examination. 10.Mr Ward referred to the Patents Court Guide which contains the following paragraph: “14.9 Where any party wishes to put documents to a witness in cross-examination, these should generally be supplied to the witness sufficient time in advance so that the witness has time to consider them before giving evidence. Generally, documents for cross- examination should be supplied at least 48 hours before the witness gives evidence. However, more time may be required depending on the nature and number of the documents intended to be relied upon. The number of documents should be kept within manageable bounds. In the case of documents over 4 pages long, there should be an indication of which parts will be put to the witness.” 11.Mr Vanhegan protested that paragraph 14.9 applies only to experts. I see nothing in its wording to confine its application in that way. 12.There is no equivalent rule in the IPEC Guide because the use of documents in an IPEC trial is governed by the more general provision contained in CPR 62.23(2): save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered in the CMC. 13.It is sometimes helpful for the court and the witness to have new documents put in cross-examination, such as a diagrammatic illustration of a process or some other document that simplifies and speeds the giving of evidence, particularly where the content of the document is familiar to the witness. There can be other types of exceptional case in which the court will allow the use of new documents in cross-examination even if the contents are new. 14.When the use of Kwikbolt’s bundle was challenged in the course of Mr McClure’s cross-examination, I told Mr Ward that I would allow Mr Vanhegan to put questions by reference to these documents but that I would be very receptive to any argument that either the witness or Mr Ward had not had the opportunity to investigate the document in question, adding that if this were the case I may well disallow the question. 15.Only a few pages from the bundle were put to Mr McClure. Mr Ward raised no objection to any of them so the cross-examination went ahead uninterrupted on that score. In Mr Ward’s written closing submissions, however, he repeated his objection to the bundle, again criticising its very late service. Mr Vanhegan gave me no direct answer when asked why the bundle had been served at such short notice. 16.For the most part Mr McClure was a good witness, giving clear answers without prevarication. The exceptions were his answers to questions put by reference to the few documents selected from the cross-examination bundle. I do not draw any conclusion from those answers about Mr McClure as a witness or otherwise. The short point is that none of Mr McClure’s evidence proved to be relevant to anything I have to decide. 17.However, litigants should be aware that in this court any party intending to rely on a cross-examination bundle should give the witness adequate notice of the bundle, which will normally be at least 48 hours, and should inform both the court and the opposing side of the exceptional reasons which justify the late introduction of new documents into the case.