UPC dismisses Ocado appeal against public access to documents

Following Ocado and Christopher Stothers’ well-publicised debate surrounding access to UPC documents, the Court of Appeal has ruled that members of the public will be able to obtain pleadings for the purpose of genuine interest or educational reasons.

It has also clarified that the UPC will allow access even where cases have settled or been withdrawn, since public interest can legitimately arise at any point during or after the course of a case. With the court staying several cases pending the appeal’s outcome, it should now grant access to the interested parties. However, the UPC Court of Appeal has strongly defended its decision to not include any technically qualified judges on its judicial panel.

Public access request

Request for access to the statement of claim is the original source of the overall transparency issue. In October 2023, judge Stefan Johansson of the Nordic-Baltic division ruled that, if a person applies for access to pleadings or evidence under Rule 262.1(b), the UPC shall approve the application unless it is necessary that the court keeps the information confidential.

However, in November, Ocado lodged an appeal against the Nordic-Baltic division’s decision to permit access with redacted personal information (case ID: UPC_CoA_407/2023 or App_584588/2023) with the UPC Court of Appeal. This stayed the original ruling of the Nordic-Baltic division. On 8 February 2024, a court order clarified that, “a member of the public who is requesting access to the Register pursuant to R.262.1(b) RoP must be represented before the UPC”.

Pan-European interest

It transpired that Christopher Stothers, partner at Freshfields Bruckhaus Deringer in London, was behind the filing of a statement of claim in Ocado vs. Autostore. He had requested access to the documents on the basis of Rule 262 1(b) of the UPC Rules of Procedure (RoP). However, in a previous notice issued by the court, the UPC had stated that the defendant was ineligible to represent himself, since he is not a registered UPC representative (case ID: UPC_CoA_404/2023; App_584498/2023).

Christopher Stothers

Stothers was thus compelled to find a representative, a task he had two weeks to achieve. Ultimately, the Freshfields Bruckhaus Deringer partner assembled an international team of lawyers from eight different firms.

During the hearing, Stothers countered Ocado’s arguments that it was unnecessary for him to see the statement of claim, given settlement made in the Ocado vs. AutoStore case, saying the court should permit file access, regardless of the proceeding stage. The only exception should be on the grounds of confidential information or personal data.

Furthermore, Stothers argued that a request under R.262.1(b) RoP is admissible even if the plaintiff has not served all defendants.

Maintaining UPC integrity

The UPC has now clarified that, when a member of the public files a request to access written pleadings and evidence pursuant to R.262.1(b) RoP, the court must weigh up this interest against the interests mentioned in Art. 45 UPCA.

The latter article states that, “proceedings shall be open to the public unless the court decides to make them confidential, to the extent necessary, in the interest of one of the parties or other affected persons, or in the general interest of justice or public order”.

The court also emphasises the need for it to maintain justice, public order and integrity. Its judgment notes that the “protection of the integrity of proceedings ensures that the parties are able to bring forward their arguments and evidence and that this is decided upon by the court in an impartial and independent manner, without influence and interference from external parties in the public domain”. In some cases, this could mean ensuring the integrity of proceedings is not compromised if public access is sought. Thus, the public may not be able to access some documents while proceedings are on-going.

Legal, not technical

On the other hand, the court also vehemently defended its decision to field a panel consisting of only legally qualified judges, rather than including a technically qualified judge. While the defendant argued that, aside from cases which fall under the exclusion of Art. 9(2) UPCA, sitting with three legally qualified judges is contrary to Art. 6 ECHR, the judges ruled that since the case had no patent nor technical issues at stake, it did not contravene Article 6.

According to Article 9(1) of the UPC Rules of Procedure, each UPC Court of Appeal judging panel must include three legally qualified judges, and two technically qualified. However, none were present in the handing down of the initial order.

For Christopher Stothers
Abreu Advogados (Lisbon): António Andrade (partner)
August Debouzy (Paris): Lionel Martin (partner, patent attorney)
Freshfields Bruckhaus Deringer (Amsterdam): Rutger Kleemans (partner)
Freshfields Bruckhaus Deringer (Düsseldorf): Stephan Dorn (partner)
Inteo (Mechelen): Kristof Neefs (partner)
IP Duo (Prague): Jiri Slavik (patent attorney)
Kromann Reumert (Copenhagen): Nicolaj Bording (partner)
Venner Shipley (London): Peter Thorniley (partner, patent attorney)

For Ocado
De Brauw Blackstone Westbroek (Amsterdam): Anne Marie Verschuur (partner)
Powell Gilbert (London): Simon Ayrton, Tom Oliver, Joel Coles (all partners)
Sandart & Partners (Stockholm): Anna Bladh Redzic (partner)

Unified Patent Court, Court of Appeal, Luxembourg
Rian Kalden (presiding judge), Ingeborg Simonsson (legally qualified judge and judge-rapporteur), Patricia Rombach (legally qualified judge)