Neutral Citation Number: [2007] EWCA Civ 661
Case No: A3/2007/0873

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PATENTS COURT)
The Hon Mr Justice Pumfrey
HC 07 C00710
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/07/2007

Before :

THE RT HON LORD JUSTICE PILL
THE RT HON LORD JUSTICE LONGMORE
and
THE RT HON LORD JUSTICE JACOB
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Between :

	Boehringer Ingelheim & Ors	Appellant	
	- and -		
	Vetplus Limited	Respondent	

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Dr Justin Turner and Miles Copeland (instructed by Messrs Clarkslegal LLP) 
for the Appellant
Desmond Browne QC and Jonathan  Barnes (instructed by Messrs DWF) for the Respondent

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Judgment

Lord Justice Jacob:
1.	Following handing down of the main judgment on 20 June 2007, [2007] EWCA Civ 584, the parties could not agree on two aspects of the consequential order.   We have received written submission about these.  This is our ruling upon them.
Costs
2.	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.
3.	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.
4.	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.
Confidentiality Order pursuant to CPR 31.22
5.	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.
6.	I hope the parties can now agree an order and submit it to the court to be entered.
Lord Justice Longmore:
7.	I agree.
Lord Justice Pill:
8.	I also agree.