Open justice and the UPC – An analysis of the Court of Appeal’s decision in relation to access to documents

On 10 April 2024, The Court of Appeal of the Unified Patent Court (“UPC”) handed down its eagerly awaited decision in relation to the ability of the public to access documents under Rule 262.1(b) Rules of Procedure (“RoP”). The decision was issued as part of the Ocado v Autostore litigation, the substantive proceedings of which have settled.

Bristows has a particular interest in this decision, having filed a request to intervene during the course of the appeal in the access to documents proceedings in December. 

Access to documents

As readers will likely be aware, there have been numerous requests filed to view documents, such as pleadings and evidence, in relation to ongoing proceedings before various UPC divisions. The majority of these requests have been refused. However, in October 2023, the Nordic-Baltic Regional Division ordered that access to the statement of claim in the Ocado v Autostore proceedings be granted to Dr Christopher Stothers of Freshfields UK. Ocado appealed this order.

In its judgment, the Court of Appeal began by outlining the relevant provisions in the UPC Agreement (“UPCA”) and RoP. In summary, Art. 10(1) UPCA provides that the register shall be public and Art. 45 UPCA asserts that the proceedings shall be open to the public unless the Court makes them confidential. This may be done in the interest of one of the parties, or in the general interest of justice or public order. Rule 262.1 of the RoP sets out that following redaction of personal data and confidential information, decisions and orders of the UPC shall be published (Rule 262.1(a)), and that written pleadings and evidence shall be available to the public “upon reasoned request to the Registry” (Rule 262.1(b). 

In summarising these provisions, the Court of Appeal asserted that the general principle laid down in the UPCA is that the register is public and proceedings are open to the public. This is the case unless the balance of interests is such that the proceedings are to be kept confidential, in which case access to documents should be denied.

When a request is made for access to written pleadings and evidence, the judge-rapporteur must weigh the interests of a member of the public in obtaining access against the interests in Art. 45 UPCA. These interests are not limited to the protection of confidential information and personal data. The protection of justice, namely the protection of the integrity of the proceedings must also be considered. Therefore, in order to allow the judge-rapporteur to balance the relevant interests, the applicant of a Rule 262.1(b) RoP request must set out in the ‘reasoned request’ why they have an interest in accessing the written proceedings and evidence. This should be done via specifying the purpose of the request and explaining why access to the specified document is necessary for that purpose.

The Court of Appeal went on to assert that the general interest of a member of the public in the making available of pleadings and evidence which allows for a better understanding of decisions of the UPC and scrutiny of the Court usually arises only after a decision is rendered. Therefore, the interests of the public in obtaining access versus the protection of integrity of the proceedings are usually properly balanced if access to written pleadings and evidence is granted after the first instance proceedings have concluded. This is notwithstanding that an appeal may be filed.

Contrary to one of Ocado’s arguments, the Court of Appeal considered that, in the case of a settlement of proceedings or withdrawal of an action, once the integrity of proceedings no longer plays a role and thus no longer counter-balances the general interest of a member of the public for access, the balance is normally in favour of allowing access. Even though there is no decision to be understood, there are other relevant legitimate interests such as scientific and/or educational interests and the Court stressed the general principle that the register and proceedings should be open to the public.

The Court of Appeal went on to highlight that there may be exceptions to the above rule in cases in which a member of the public has a more direct interest in the written pleadings and evidence of a particular case. A direct interest would encompass a situation in which a competitor or licensee is interested in the validity of a patent, or in which a member of the public is planning to launch a product which is similar to a product in relation to which a party in a case is accused of patent infringement. This direct interest does not only arise after the proceedings have come to an end. In weighing such a direct interest against the interest of integrity of proceedings, the balance will be generally in favour of granting access to the written pleadings and evidence. However, the court may impose certain conditions in relation to confidentiality of the documents.

Overall, Dr Stothers’ request for access was deemed to be of a general nature (Dr Stothers had stated that he was interested to see how the claim filed in the Nordic-Baltic division was framed, including as compared to parallel claims filed by the patentee in parallel UPC actions in other divisions, and cited a broader public interest in the information being made available for public scrutiny and discussion). Given that the relevant proceedings had come to an end via settlement, the balance of interests was in favour of allowing access and the appeal was dismissed.

Composition of the Court of Appeal

During the proceedings, a subsidiary point arose in relation to the composition of the panel of the Court of Appeal. Art. 9(1) UPCA sets out that the Court of Appeal will sit in a composition of three legally qualified judges and two technically qualified judges. Dr Stothers argued that the Court’s decision to sit with only three legally qualified judges is contrary to Art. 6 of the European Convention on Human Rights (“ECHR”) in light of Art. 9(1) UPCA.

The Court of Appeal interpreted Art. 9(1) UPCA to be non-exhaustive as to the composition of the panels of the Court. This allows the Court to sit with three legally qualified judges without assigning technically qualified judges in cases where only matters of a non-technical nature are in dispute.

In doing so, the Court of Appeal cited several provisions of the UPCA, the Statute of the UPC, and the RoP which it asserted indicate that Art. 9(1) UPCA should not be read in a restrictive way. Further, the Court cited the principles underlying the UPCA and RoP which relate to handling proceedings in an efficient manner, in addition to proportionality, flexibility, fairness and equity. These principles were deemed to provide support for limiting the composition of panels given that allocating technical judges can take time and appeals on procedural matters are generally urgent (due to the lack of suspensive effect). Finally, the practice of UPC Member States, including Finland and Denmark, and provisions related to the UPC first instance courts were cited to support the Court’s decision. 

Given that, in the present proceedings, the only issue at stake was the proper interpretation of Rule 262 RoP, there were no technical issues at stake thus the Court of Appeal is permitted to sit in a composition of three legally qualified judges without violating Art. 6 ECHR. 

Commentary

The Court of Appeal has proposed, in essence, a hybrid approach to access to documents, depending on whether a member of the public has a ‘general’ or ‘direct’ interest in the proceedings. This is a more transparent approach compared to UPC Member States such as Italy and Germany, in which access to court documents is very limited, but more restrictive than other Member States such as some Nordic countries, in which court documents are freely accessible. 

Whilst the author acknowledges the difficulty in balancing the various interests at stake, many practitioners understood that the inclusion of the ‘reasoned request’ requirement in Rule 262.1(b) for access to pleadings and evidence, which was not added to Rule 262.1 until the final draft of the RoP, was not included to create a significant bar in relation to accessing documents. The general understanding was that the motivation for this wording was to ensure the overall process of document provision by the Court was compliant with the GDPR. In fact, the explanatory notes of the Preparatory Committee relating to this wording set out that the reason for the amendment to Rule 262.1 was due to the need to protect personal data contained in documents, and that this could be achieved by documents being redacted of personal data prior to being made available. It was therefore understood that the ‘reasoned request’ requirement was included by the Administrative Committee simply to allow the Registry to undertake a GDPR review and redaction process in relation to the documents for which access is requested, instead of having to do so in relation to every document regardless of any public interest in the document. 

The Court of Appeal in the present case is, however, taking a more restrictive approach with regard to the interpretation of Rule 262.1 and related provisions in the UPCA. This decision, coupled with the Order from the Court of Appeal in Ocado v Autostore issued in February which ruled that a member of the public requires a professional representative in order to request access to documents, arguably does create a significant barrier for members of the public in terms of transparency. 

Given that the UPC is a new Court without an established body of case law, the principle of open justice is particularly pertinent. It is hoped that, going forward, the application of the Court of Appeal’s decision strikes the correct balance in practice. It is noted that the Court has exercised some flexibility in relation to parties which might have a ‘direct’ interest in gaining access to documents. However, there is limited guidance in the Court’s judgment regarding the level of evidence that might be required in order to prove such an interest. There are likely to be more cases progressing through the system which explore this.

Regarding the Court of Appeal’s assessment in relation to Art. 9(1) UPCA and the composition of the Court, although the author recognises that the approach is pragmatic and is likely to aid efficiency, the interpretation of Art. 9(1) appears strained and it is not clear to the author that the Court’s ruling will have allayed the controversy which the reduced panel approach raised among some observers.