Saturday, 1 February 2020

Patent litigation: When withdrawing admissions will result in prejudice

In Lufthansa Technik AG v Astronics Advanced Electronic Systems and others [2020] EWHC 83 (Pat), the defendant assumed that it had been supplying goods in the UK (or at least that it was responsible for the supply). Its inhouse lawyer made certain admissions on that basis. Later, when it was realised that this was not the case, it tried to withdraw the admissions - a matter covered by paragraph 7.2 of Practice Direction 14. 

The authorities make clear that the facts of the case are all-important. Among the factors that para 7.2 says have to be considered are prejudice to the claimant and prejudice to the defendant. The present case turns on what "prejudice" means in this context. Nugee J, reviewing the CPRs' policy of eoncouraging admissions as a way to focus litigation (and reminising about the way things used to be done in the badd old days, when pleadings were all about obfuscation rather than clarification) held that prejudice was caused to a person if an admission was withdrawn in circumstances where they would be worse off if the admission was withdrawn than if the admission were not withdrawn: and on that basis he unsurprisingly refused to allow the defendants to withdraw the admissions (with one minor exception).

There seems to me to be no reason to restrict this principle to patent, or even to IP, litigation.

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