VetPlus again - no reduction in costs or confidentiality order

Last week the IPKat commented here on the Court of Appeal's dismissal of Boehringer's appeal against the refusal of Mr Justice Pumfrey to muzzle dog-food supplement maker VetPlus.

Right: is this what Boehringer sought to do to VetPlus and the veterinary press?

That company, a keen competitor of Boehringer, was making some unfavourable comments about a canine arthritis product which, Boehringer said, infringed its SERAQUIN trade mark. Those unfavourable comments were based on data which was the subject of dispute: Boehringer maintained that it had sent the data to VetPlus for the purpose of resolving the dispute between them, though it also sent that data to the trade press, threatening legal action if VetPlus's claims about its product were published.

Today there has been a small sequel, [2007] EWCA Civ 661, which you can read here on BAILII, on the questions of costs and confidentiality. Giving judgment for the Court, Lord Justice Jacob said:

"Vetplus ask for their costs of the appeal and those before Pumfrey J – to be assessed if not agreed - and for a payment on account of £50,000. Boehringer say there should be a deduction because they "won" on the question of disclosure of the material sent in the pre-action letters said, when sent, to be used only for the action. We did not hear the issue because, following discussion, the matter was as a practical matter compromised – see [7] of the main judgment.

I would reject any deduction. Pumfrey J refused an injunction because there was no longer any threat. Most importantly Boehringer had sent the same material to the press on what they claimed was a confidential basis. But sending material to the press and seeking to impose an obligation of confidence at the same time is very close to discarding confidentiality. Besides the material has been discussed generally in open court.

Accordingly I would hold that Vetplus is entitled to their costs here and below. It is also entitled to an order for interim payment on the usual fourteen day basis. I would assess the sum payable as £40,000, the figure asked for being somewhat too high".

A further issue raised at this late stage was whether Boehringer was entitled to a Confidentiality Order under the Civil Procedure Rules, r.31.22. Again the court said no:

"Boehringer ask that certain documents concerning tests put in evidence should be subject to a confidentiality order pursuant to CPR 31.22. I would reject that. The material was deployed in open court voluntarily. Moreover there is no evidence to support the application for confidentiality".

The IPKat would love to know the basis upon which the order for interim payment was reduced from £50,000 to £40,000. Is it a matter of judicial impression or is there a secret scale? Merpel adds, the words "But sending material to the press and seeking to impose an obligation of confidence at the same time is very close to discarding confidentiality" look like a hostage to fortune. What's the betting that they'll be cited out of context in celebrity privacy cases before too long, where newspaper publishing defendants argue that no-one expects the press to keep secrets?

Dog-eat-dog here
Man-eat-dog here and here (not for the queasy, in either case)
Dog-eat-man here
Joint relief for dogs here