NO SECOND BITE OF A CHERRY AFTER A TRIAL: COURT OF APPEAL CONFIRMS JUDGE’S DECISION
In L’Oreal (UK) Ltd & Anor v Liqwd Inc & Anor  EWCA Civ 1943 the Court of Appeal confirmed the trial judge’s decision not to admit new evidence that a defendant attempted to introduce after judgment was handed down.
“the judge was again entirely correct to attach weight to the fact that L’Oréal were trying to re-fight an issue on which they had lost at trial having taken the tactical decision to try to establish their case through cross-examination of Olaplex’s expert rather than seeking an adjournment to adduce further evidence of their own.”
At a trial the judge had found that one of the first defendant’s hair products infringed a patent held by the claimant.
After the trial, and after judgment was handed down but before the order was sealed, one of the expert witnesses instructed by the first defendant carried out an experiment which, in his view, had some significance and showed that the claimant’s patent was invalid. The trial judge refused to admit the new evidence. That decision is discussed in this blog post.
The first defendant appealed, the appeal included an appeal against the refusal to hear new evidence.
THE COURT OF APPEAL DECISION ON THE “NEW EVIDENCE” POINT
The Court of Appeal rejected the defendant’s argument that the judge should have allowed the new evidence.
i) He misapplied the test in Re L by saying that “[f]or such an order to be in accordance with the overriding objective there must be something about the circumstances to justify that course given its inevitable consequences in terms of cost and trouble to the parties of a further trial but also the allocation of the court’s resources to these litigants as well as others” (Second Judgment at ).
ii) He should not have placed reliance upon the fact that the new evidence did not make “all the difference between success and failure on the issue of priority” (Second Judgment at ).
iii) He was wrong to attach weight to the fact that L’Oréal could have sought an adjournment during the trial, but decided not to (Second Judgment at ).
In my judgment none of these criticisms has any substance. The first criticism is completely untenable. Plainly there has to be something about the circumstances which justifies re-opening the issue, otherwise there would be no basis for acceding to the application. Moreover, the judge’s approach is wholly in accordance with CPR rule 1.1. As counsel for Olaplex rightly submitted, the overriding objective is not simply about reaching the (allegedly) correct decision on the merits: see the discussion in Nikken v Pioneer. Contrary to the submission of counsel for L’Oréal, the judge was not re-introducing the test of exceptional circumstances from Re Barrell.
As for the third criticism, the judge was again entirely correct to attach weight to the fact that L’Oréal were trying to re-fight an issue on which they had lost at trial having taken the tactical decision to try to establish their case through cross-examination of Olaplex’s expert rather than seeking an adjournment to adduce further evidence of their own. In this regard, I note that counsel for L’Oréal repeatedly submitted that the issue raised by the new evidence had not yet been determined. This is not correct. As discussed above, it was determined by the judge adversely to L’Oréal on the evidence before him, albeit by way of an alternative ground for his decision that L’Oréal had not established that claim 11 lacked novelty over Example 8 of WO 768. That evidence did not include the new evidence precisely because L’Oréal did not seek an adjournment.
Counsel for L’Oréal also submitted that the judge had been wrong not to attach weight to the fact that (as the judge was prepared to assume) Olaplex had known about the error in the description of Example 1 for some time. This criticism has no more substance than the first three. The judge expressly found that there had been “no failure of disclosure or a lack of candour by Olaplex in relation to this point at trial” (Second Judgment at ). There is no ground of appeal challenging that conclusion, and in any event it was one that was plainly open to the judge. As counsel accepted, the relevant individual(s) might have forgotten about the matter or not appreciated its relevance. Even if they remembered it and appreciated its relevance, counsel was unable to identify any reason why they were obliged to disclose it.