Yesterday, in a highly anticipated ruling,1 the UPC Court of Appeal (“CoA”) dismissed an appeal brought by Ocado in its litigation in the UPC against Autostore, following a decision by the Nordic-Baltic Division to grant third party access to pleadings filed on the UPC Case Management System (“CMS”).
The decision is a significant one in the early stages of the UPC’s operation, and appears to shift the balance towards permitting third party access to pleadings and evidence filed on the CMS, although each ‘reasoned request’ (made pursuant to Rule of Procedure Rule 262.1(b)) will be determined on its facts.
SUMMARY
In interpreting Rule 262.1(b), the CoA reasoned that:
- A member of the public generally has an interest that pleadings and evidence are made available, which helps contribute to "trust in the Court by the public at large" (and also aligns with Article 45 of the UPC Agreement, which makes clear that proceedings shall by default be open to the public).
- A specific, direct interest in the subject matter of the proceedings is not required; general interests such as "scientific and/or educational interests" are legitimate for the purposes of requesting access to pleadings and evidence in proceedings.
- A third party’s interest in obtaining access, however, must be weighed against various, important interests set out in Article 45 of the UPC Agreement, such as the protection of confidential information and the general interest of justice. The CoA made clear that the latter includes the protection of integrity of proceedings (namely 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").
- An applicant is still, however, required to specify the purpose of a request and state why access to the specified documents is necessary for the stated purpose, so to enable the Court to carry out this balancing exercise.
- Requesting access while proceedings are pending effectively gives rise to a higher bar under Rule 262.1(b), in comparison to a case which has since settled where the interest of ‘integrity of proceedings’ no longer applies.
In this case, the CoA determined that the balance of interest weighed in favour of granting the third party (an individual) access to the pleadings, based on the individual’s general interest in how the claim was framed.
COMMENTARY
This ruling would appear to mark a conscious shift away from the more restrictive approach that the wording of the Rules of Procedure (on a literal interpretation) suggest should be followed. This decision is particularly interesting when compared to the stance taken previously by the UPC at first instance in other pending actions, in which general interests such as “education and training” were not considered to constitute a “concrete and verifiable, legitimate reason” and as such, did not legitimise granting third party access to parties’ pleadings under Rule 262.1(b).2
This decision will be viewed as a move in the right direction by those who have openly criticised the lack of transparency of UPC proceedings and campaigned for unrestricted file access to third parties, as is provided for in the EPO, and indeed has broadly been the position in many national courts. The decision is particularly notable after the CoA’s order (in respect of the same litigation) earlier this year, which made clear that general members of the public cannot have access to court documents unless requested through a professional UPC representative.3 Indeed, the two rulings might even be deemed to give rise to a degree of inconsistency.
Some may, however, feel the decision does not go far enough, falling short of permitting default automatic access to pleadings and evidence on the CMS, such access still being subject to a formal, reasoned application made to the Court.
We can now expect an increase in third party access requests, in the expectation that a more relaxed approach will be taken by the lower instance courts following the CoA’s decision. However, it is still very much at the discretion of the judge-rapporteur in each case to reach his or her own decision having carried out the balancing exercise set out by the CoA - and after consulting with the parties. The ruling of the CoA still therefore gives plenty of scope to UPC judges to come to different conclusions on where the balance of interest lies, depending upon the facts of each case.
