Mr Peter Knox KC (instructed by Taylor Wessing LLP) for the Defendant/Applicant
MR JUSTICE FREEDMAN :
I Introduction
On 30 July 2024, the Court heard consequential arguments arising out of a judgment in this matter neutral citation [2024] EWHC 1495 (Ch) (“the Judgment”). The primary issues were about the form of order in respect of Musst’s collateral use allegation and the orders as to costs as regards the various applications that were before the court.
The Judgment, particularly at paragraphs 8 and 75, comments about overload, or what Lewison LJ in refusing permission to appeal referred to as a ‘mini-trial’. The enthusiasm of the parties and determination that no stone goes unturned is reflected by lengthy skeleton arguments for the consequentials hearing comprising 25 pages by MRL and 16 pages by Musst. The consequentials hearing lasted 3 1/2 hours. Due to other judicial commitments of which the parties were aware, there was not time to give judgment at that hearing.
The Court had in mind giving judgment orally, but this proved impractical at holiday time with key people understandably being in holiday destinations abroad. Accordingly, judgment is being handed down in writing, and it is a statement of the result on the very orders to be made and the key reasons. It is not intended to cover every single point that has been raised in the above arguments but they have all been considered. This judgment on the consequentials is to be read alongside the Judgment. I shall not extend this judgment by repeating that which appears in the Judgment.
II Decision as to form of order
As regards the collateral use allegation, the submission of Musst is that MRL should destroy or delete the documents in the Astra trial bundle and any notes made there. This is save only those documents which (a) it proposes to rely on in these proceedings and (b) which were referred to in open court or which the judge was specifically invited to read or which were specifically referred to in the Judgment in the Musst v Astra proceedings.
The submission of MRL is that Musst should provide MRL with all public documents in the Musst v Astra proceedings including skeleton arguments, written submissions, chronologies, reading list and correspondence with the Judge about suggested reading, the judgments given in the case not limited to the final judgment and transcripts of public hearings such as there are (hereafter collectively referred to as “the Public Documents”).
MRL also submits that if the filleting exercise is to be comprehensive, then Musst should not use documents disclosed by Astra and which were not already known to Musst (e.g. because they were common documents between the parties such as correspondence). To that end, a part of the filleting exercise should be putting to one side the Astra documents so that they are not used without the permission of the court or the consent of Astra in the instant proceedings.
Musst submits that it will be very costly for it to be involved in this process. Musst says that MRL has brought it about, and so Musst should not have to concentrate its resources on a filleting exercise, but if it does, it should be at the expense of MRL.
MRL submits that Musst has knowledge of the Musst v Astra proceedings. Only Musst can assist in relation to the details of whether documents fall within or outside the prohibition against collateral use and within the exception in CPR 31.22(1)(a). Thus, Musst should do the filleting exercise.
As regards Musst removing the Astra disclosed documents, Musst says that its position is different from MRL in that Musst was a party in the proceedings with Astra and there is no question of it using any documents from Astra. In any event, there was no application to this effect, and it should not be countenanced at this stage. On review, it was said by MRL that they did make this point: to the extent that they did, it appears to be more a defensive technique to show that any breach on its part was a technical breach. It showed that such a breach was so prevalent that it was technically committed by Musst as well. It is too late for this point to be considered as a freestanding point, if it was ever intended as such, but it is not too late in the context of regulating the future by a filleting exercise, to make sure that there is taken out of the documents disclosed in Musst v Astra any infringing documents whether emanating from Musst or Astra.
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