ATTEMPTS TO RE-OPEN ISSUES WHEN A DRAFT JUDGMENT IS SENT OUT: COURT OF APPEAL SAYS NOT AN INVITATION TO RE-ARGUE THE ISSUES

In Supponor Ltd & Anor v AIM Sport Development AG [2024] EWCA Civ 396 the Court of Appeal resisted attempts (by both parties) to re-open key issues after a draft judgment had been sent out.

“The primary purpose of this practice is to enable any typographical or similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones.”

THE CASE

The court was considering an appeal relating to a patent concerning the digital overlaying of display billboards at sporting events.  The overlaying allowed different tv audiences to see different adverts on the boards, depending on where they are viewing from. The appeal was allowed in a very small way, which made no substantive difference to the outcome.  The court sent out the draft judgment to the parties for editorial correction.   Both parties suggested substantive revisions to the judgment.

THE JUDGMENT ON THIS ISSUE

 

Postscript

When the draft judgment was circulated, the parties identified a number of minor typographical errors. They have been dealt with. However two further matters arose, which I will address below.
The starting point is to reiterate the function of the practice of circulating a judgment in draft. Lord Judge CJ explained this at [5] of R (Mohamed) v Foreign Secretary (No 2) [2010] EWCA Civ 158, [2010] 3 WLR 554:
“The primary purpose of this practice is to enable any typographical or similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones. However on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft. (see for example [In the matter of L and B [2013] UKSC 8]). For example, a judgment may contain detrimental observations about an individual or indeed his lawyers, which on the face of it are not necessary to the judgment of the court and appear to be based on a misunderstanding of the evidence, or a concession, or indeed a submission. As we emphasise, an invitation to go beyond the correction of typographical errors and the like, is always exceptional, and when such a course is proposed it is a fundamental requirement that the other party or parties should immediately be informed, so as to enable them to make objections to the proposal if there are any.”
[In this passage I have added in square brackets the reference to the later Supreme Court judgment of In the matter of L and B, as a substitute for the earlier cases cited.]
In the same vein Smith LJ put it this way at [50] in Egan v Motor Services [2007] EWCA Civ 1002:
“The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge’s eye. […] Circulation of the draft is not intended to provide counsel with an opportunity to re-argue the issues in the case.”
Regrettably neither party adhered to this clear guidance.
AIM’s list of corrections provided on 18 April 2024 included some proposals, described as clarifications, which were fairly transparent attempts to adjust the wording of the draft judgment for its own purposes. Nevertheless, understandably those proposals led Supponor to write an urgent detailed six page letter, on the same day, objecting to them. I have not made any of those changes proposed by AIM.
Also on 18 April, along with its list of corrections, Supponor filed written submissions inviting this court to reconsider ground 6 of the appeal which relates to the claim amendment. The submissions asked the court either to revise the judgment and allow ground 6 of the appeal, or remit consideration of aspects of the claim amendment to the High Court. Supponor did this without notifying AIM in advance, leading AIM to send in objections in a detailed email in the evening of 18 April.
Supponor’s written submissions advance three arguments. The first two (submissions paragraphs 5-20) start with a contention that my paragraph 54 above misunderstands the case in appeal because, as the submissions put it, Supponor “did not argue … that ‘active’ in the context of integer 12.7 referred to the fact that the image in the display was moving …”. However that was indeed the argument put in the oral submissions. The transcript of the appeal hearing records counsel for Supponor submitting, by reference to the patent, that an active screen “is one which has got these moving image displays” (day 1/115). Therefore the judgment does not proceed on a misunderstanding of a party’s submission. The answer to counsel’s argument, as explained in paragraph 54, is that that is not what “active” means. The term “active” in the patent and in feature 12.7, refers to the capability of the board to actively emit light.
The remainder of the first two arguments then goes on to reargue the other aspect of Supponor’s case which failed in the court below and which I rejected above. One of the points taken in the written submissions is a suggestion that my reasoning above at paragraph 54 involves a finding that “active” must refer to the emission of visible light. However that is to read too much into the reasoning, which is not directed to that question. What paragraph 54 is directed to is the conclusion that the term “active” refers to the capability of the board to actively emit light. Simply that. It is of course true, as the paragraph explains, that a board which provides a display of images using LEDs which emit visible light will be an example of an active system. However the judge’s conclusion, which I have agreed with above at paragraphs 55/56, is that amended claim 12 will not cover Nevatie because in that system the LED screen is highly active emitting infra-red light. The fact that the light being emitted is infra-red and therefore invisible does not mean the board is not active. Nothing in these new written submissions justifies a revision to the judgment rejecting ground 6 of the appeal.
The third argument in the written submissions (paragraphs 21-29) seeks to re-open issues which were decided against Supponor below and which it did not appeal. In the court below AIM advanced the claim amendments as a precaution in case light-on-dark was not a requirement of claim 12 (judgment [219]). Supponor objected to the amendments on three grounds, as the judge explained at [222]:
“222. Supponor objects to the amendments on the grounds that:
i) They make no difference and do not validate claim 12 if it is obvious over Nevatie.
ii) Lack of clarity.
iii) Added matter.”
The judge rejected all three. On this appeal the appellant challenged the first one but not the other two. That was ground 6 and has been rejected above. Supponor now contends that this court is required to address the other two points now or to remit them (or at least the third one) to be considered by the Patents Court. The ostensible reason advanced for this is because, it is said, Supponor has not had the opportunity to make submissions about the added matter point in the light of a conclusion in the appellant’s own favour on ground 2 of the appeal.
This is wrong. By raising ground 6 of the appeal, the appellant took the point it wanted to raise in this court in objection to the amendment. There is no procedural difference between the point which the appellant did take under ground 6 and the issue of added matter. Both points, if taken, would arise if Supponor’s case on ground 2 succeeded. However it chose only to advance ground 6.
I am not satisfied there is any justification for reconsidering the judgment based on the arguments in the appellant’s written submissions of 18 April 2024.