In the case of HTC Corporation v Nokia Corporation  EWHC B16 (Ch) the High Court has considered the scope of an application for specific disclosure made under CPR 31, particularly in relation to the meaning of “control”.
This case concerned a challenge by HTC against the validity of two Nokia patents and a counterclaim by Nokia that HTC had infringed their patents through the utilisation of chipsets from Broadcom and Qualcomm.
Nokia needed documents from Qualcomm in order to advance their case on infringement. However, as Qualcomm was not party to the litigation and is based in America, Nokia was required to obtain a third part disclosure order from the District Court of Southern California. This order contained confidentiality provisions to which HTC were not prepared to agree. HTC therefore sought an order for specific disclosure of the documents exchanged between Qualcomm and Nokia.
The High Court was asked to consider the scope of CPR 31.8, and in particular whether the documents fell under the “control” of Nokia. Whilst it was agreed that the documents in question were not in Nokia’s physical possession, HTC argued that the fact of them being in the possession of Nokia’s solicitors (who were effectively agents of Nokia) put Nokia in control within the meaning of the Rules.
The High Court refused to grant the order.
In reaching his decision, Norris J stated that Nokia could not, as a matter of fact or law, compel anyone to deal with the documents, otherwise than in accordance with the protective order.
Norris J went on further to state that, even in the event that CPR 31.8 did apply, he would not have exercised his discretion to make an order which would have had the effect of varying an order of the Californian court and prejudicing Qualcomm's confidential information.
This decision further highlights the increased need for careful consideration of the appropriateness of making specific disclosure applications, particularly in light of the implementation of the recent civil litigation reforms.
The exercise of disclosure can often be expensive, and courts will not look favourably upon parties who make expensive applications without a strong case for doing so.
This decision also evidences the English courts’ reluctance to make orders which vary or contradict those already given in foreign jurisdictions, even if, as admitted by Norris J in this case, it leaves the entire trial in jeopardy.