End to eleventh hour evidence

A new High Court ruling demonstrates that courts intend to implement the Woolf recommendations and will block last-minute moves to introduce new evidence into actions if they are likely to delay the trial.

This tough stance comes from a patent action in the High Court's Chancery Division where Mr Justice Jacob refused to admit last minute evidence accepted by all involved in the case to be highly relevant.

As a result of his decision, the plaintiffs, multi-national chemical giant Albright & Wilson, decided not to produce any evidence of patent infringement and the case effectively collapsed.

The judge's refusal to allow Albrights to introduce further evidence at a late stage in the proceedings was on the basis that the trial date, once fixed, had to be preserved if loss of it would cause extreme prejudice to one of the parties. In this case it was the defendants.

Nabarro Nathanson senior solicitor Tim Bamford believes that had the judge acceded to the plaintiff's request for an adjournment, his clients, the small Northern Ireland chemicals manufacturers SB Chemicals, would probably have found it impossible to continue.

"In these circumstances the judge was prepared to take a very firm stand and exclude the evidence the plaintiffs wanted to introduce, even though it was vital to their case," said Bamford.

SB manufactures 'own label' household detergents for supermarket groups such as Sainsbury's, Superdrug and Tesco. It was sued after Albrights, which holds 90 per cent of the £190 million-a-year detergent market, claimed its patents had been infringed by SB's laundry liquids.

Bamford said: "This case should send a clear message to all litigants that in future they are likely to find they will not be allowed eleventh hour opportunities to introduce new evidence, however important it may be.

"If there is a danger that the trial will have to be postponed and that this will cause extreme prejudice to one of the parties then such adjournments, although they would probably have been allowed in the past will not now be available."

Apart from the tough stance over late evidence, the case is also viewed as a significant monopoly breaking victory in the chemicals industry.

Albrights has long dominated the detergent market with leading brand manufacturers Unilever and Colgate Palmolive manufacturing under licence from it. Now, in the light of the SB victory the huge market share Albrights has enjoyed could become vulnerable.

Bamford says the four-year battle, apart from being a triumph for team work, involving leading and junior counsel, patent agents and experts, was also a triumph for the determination of SB.

At a figure thought to be in excess of £500,000, the company's costs rose to a level which its yearly turnover of £6 million could ill afford. Albrights has now been ordered to pay both costs and damages, which are yet to be assessed.

Had the case gone the other way the prospects for SB would have been bleak. Bamford praises the company for having the courage to "stand up for what it believed in".

But he adds: "Depending on your stand point this case was either a very good or a very poor advertisement for the patent system as a whole."