English to blame for foreign language foul-up?

MMI Research Ltd v Cellxion Ltd and others (Patents Court, Mr Justice Mann, 24 September, noted by the subscription-only LexisNexis Butterworth service) is the story of a business, five adversaries and its own worst enemy - read on to find out who that might be.

MMI first sued the fifth defendant in Germany for patent infringement, then sued the first four defendants in the United Kingdom. Those defendants denied infringement and challenged the patent's validity. The documents disclosed to the defendants included an English document, which MMI believed to have been filed in the German proceedings, as well as a German document which was believed to be a translation of it. Some months later, having spoken to its German counterpart, MMI's solicitor discovered that the English document was in reality a draft of pleadings that had not actually been filed in the German proceedings. MMI sought an order preventing further use of that document on the ground that it was a privileged document that had been disclosed by mistake.

On the assumption that the document was indeed privileged and had been disclosed by mistake, an issue arose as to whether there had been any waiver of privilege in respect of it. According to MMI, the defendants’ solicitor must have appreciated that the document had been disclosed by mistake. Even if he hadn't, it should have been obvious to a reasonable solicitor that an error had occurred.

The defendants’ solicitor gave an undertaking to the effect that, when the English document had been listed and received, it had not realised that such a mistake had been made.

Mann J held that privilege had, on the facts, been waived. The test was not whether, having done a detailed comparison of the documents and made further enquiries, the mistake was apparent, but rather of whether the mistake was obvious. Here it could not be established that the receiving solicitor had realised that a mistake had been made: the nature of the material received was such that it would not have been obvious to a reasonable solicitor that a mistake had been made. After all, it wasn't even obvious to MMI's own solicitor that a mistake had occurred until after it consulted the German lawyers.

The IPKat says, mistakes of this nature don't only occur where foreign-language documents are involved. Poor labelling and obscure draftsmanship can cause mistakes of this nature even where documents are in the normal language of the parties themselves. Merpel says, yes - but there's something rather uncomfortable about the thought that the outcome of patent infringement litigation might turn on something as unrelated to the legality of the alleged infringing acts as is the state of the claimant's mind. Both Kats add: it seems somehow ironic that the victim of this slip is a company that specialises in (as its logo states) "communications and security solutions".