High Court refuses redaction of judgment and permanent confidentiality order against public interest.

APPROVED [2025] IEHC 500

THE HIGH COURT

COMMERCIAL – INTELLECTUAL PROPERTY & TECHNOLOGY

Record No.: 2024/2369P

BETWEEN:

SANDOZ AG and ROWEX LIMITED Plaintiffs

-and-

BAYER INTELLECTUAL PROPERTY GMBH Defendant

JUDGMENT of Mr Justice Rory Mulcahy delivered on 22 September 2025

1. In April and May of this year, I heard the plaintiffs’ challenge to the validity of Irish patent EP (I) 1 845 961 (“the Patent”). Judgment was delivered to the parties on 25 June 2025 (“the judgment”) but was not published more generally at that time in light of an order made at the outset of the hearing.

2. Following the plaintiffs’ opening submissions in the case, the defendant sought an order that information disclosed to the plaintiffs in these proceedings by way of discovery, designated as confidential information pursuant to a confidentiality agreement between the parties, be dealt with in such a way that that information was not released in whole or in part into the public domain or was otherwise caused to lose its character of confidentiality. The application sought, if necessary, an order that the proceedings, or parts of the proceedings, be heard in camera.

NO REDACTION REQUIRED

3. As recorded at paragraph 408 of the judgment, I indicated in an ex tempore ruling on the second day of hearing that I considered it to be, at the very least, premature to make a permanent order of the type sought by the defendants. However, in circumstances where the jurisdiction to make such an order was accepted by both parties, I made an interim order preserving the confidentiality in the documents pending further order (“the confidentiality order”), and granting liberty to the defendants to apply to make the order permanent in respect of some or all of the documents. As will be seen, this approach reflects that of the courts of England and Wales when dealing with such applications.

4. Following delivery of the judgment to the parties, the proceedings were listed for mention in court that day. Counsel for the defendant (“Bayer”) indicated that it was the preliminary view of Bayer that it would be making an application to make the confidentiality order permanent and that it would, as an aspect of that application, be making an application to have certain portions of the judgment redacted.

5. Bayer circulated a copy of the judgment with its proposed redactions within a matter of days. I then fixed 31 July 2025 for the hearing of Bayer’s application to make the confidentiality order permanent, and submissions were exchanged by the parties. In advance of the hearing of the application, Bayer circulated a further copy of the judgment with revised proposed redactions, more limited than those initially proposed.

6. Bayer’s application consists of three strands. First, an application that the judgment delivered to the parties be redacted prior to publication. Bayer seeks to redact a small number of references to documents referenced in the judgment, a total of five proposed redactions. Second, an application to redact the transcript of the trial. Bayer proposes that almost all references to 19 separate documents referenced in the transcript be redacted. And third, an application that any documents designated as confidential under the confidentiality agreement and “opened” during the trial be deemed to retain their confidential status. In this latter regard, the parties agreed that any documents referred to in the expert witness statements exchanged between the parties and adopted as those experts’ evidence should be regarded as having been opened, irrespective of whether those documents were expressly referred to during the hearing. Of the 1,012 documents provided on foot of the order for discovery, just 29 designated as confidential were referenced in the expert reports. An additional two confidential documents were put to Professor Mark Andrew Crowther in cross-examination. Of these 31 documents, Bayer seeks orders in relation to 25 documents;

it accepts that six of the documents should no longer be regarded as confidential. It also accepts that portions of one of the remaining documents are not confidential.

7. The plaintiffs (“Sandoz”) oppose Bayer’s application in its entirety.

8. Since part of Bayer’s case on this application relates to how the documents came to be deployed in the proceedings in the first place, it might be helpful to explain that background in a little more detail than in the judgment. For simplicity, I will simply refer to the entire body of confidential documents disclosed by Bayer to Sandoz as ‘the confidential documents’, and the sub-set of those documents opened at trial and which are the subject of this application as the ‘the confidential trial documents’.

The confidential documents

9. On or about 10 June 2024, Sandoz made a request for voluntary discovery of Bayer. It identified a list of documents which had been provided under terms of strict confidentiality in proceedings concerning the Patent in South Africa and in respect of which the protection of an in camera process was afforded at trial. The documents all related to Bayer’s development of the Patent the subject of the proceedings.

10. Sandoz requested production of the documents outside of the usual discovery procedures, at the commencement, as distinct from conclusion, of exchange of pleadings in the case.

11. Bayer disputed the relevance and necessity of the documents, queried the reason they were asserted to be relevant and necessary for the Irish proceedings when no discovery had been requested in Sandoz’s challenge in the UK, and drew attention to the fact that discovery could only add delay and cost to the proceedings. Without prejudice to those concerns, Bayer nevertheless agreed to provide the requested documents to facilitate Sandoz’s timeline and obviate the need for a disputed discovery application. A consent order for discovery was made, dated 23 September 2024, pursuant to which a total of 1,012 documents were disclosed by Bayer. Bayer did so strictly on the basis that the documents would be provided subject to strong confidentiality protections. A confidentiality agreement (“the Confidentiality Agreement”) was made between the parties pursuant to which the documents were provided.

12. The confidential documents made available under the Confidentiality Agreement were designated as being “Confidential Information” subject to coming into the public domain other than through the fault of Sandoz (Clauses 2.1 and 2.2).

13. Clause 2.4 provided for the cessation of obligations of confidentiality in respect of material which was read out in open court, or referred to in place of being read out - but only to the extent to which such material:

“… is not the subject of an order protecting its continued confidentiality … and to the extent only, that the information in question has been disclosed in open court, without restriction or condition protecting its status as Confidential Information, and following and in accordance with the procedures prescribed in this agreement, including in particular but without limitation, the provisions of clause 9.”

14. Sandoz’s entitlement to rely on the confidential information was constrained by Clause 9.1.1(a) of the confidentiality agreement which required Sandoz:

“…use best endeavours to ensure that:

(a) Confidential Information is only disclosed as and to the extent that Sandoz reasonably considers it to be necessary to rely on such Confidential Information…”

15. Bayer’s right, as between the parties, to apply for protection for Confidential Information used at trial was acknowledged in Clause 2.5.2 and was the basis for its original application for a protection order and its current application to have the said order made permanent.

16. By Clause 2.5.1(b) of the Confidentiality Agreement the parties acknowledged that Sandoz could challenge “… the asserted confidential nature of the information concerned ...”

17. Shortly before trial, Sandoz exercised its entitlement to challenge confidentiality in respect of 22 documents and it was agreed by the parties that an independent third party would determine the issue. Bayer agreed that 6 of the 22 documents challenged were no longer confidential – having been disclosed in other proceedings.

18. On 24 April 2025 the third party informed the parties of his determination in summary form (with reasons to follow later), which included the following:

“I have concluded and so determine that, subject to one caveat, each of the documents which are the subject of continuing dispute, are confidential. However to the extent that any such documents contain information which has, in substance, been disclosed in any of the journal articles to which I have been referred, then I determine that the information thus disclosed and the relevant portion of the document containing such information is not confidential for the purposes of the Confidentiality Agreement and in accordance with Irish Law.”

19. Sandoz and Bayer exchanged correspondence in May 2025 in relation to whether some of the documents had been disclosed in the manner contemplated by the independent third party, but that exchange has not been progressed by Sandoz.

20. The trial documents were deployed at trial as attachments to supplemental expert reports. A number of them were expressly referred to in oral evidence. The evidential basis upon which the trial documents were deployed was belatedly an issue in dispute between the parties, as detailed at paragraphs 411 to 417 of the judgment.

21. In written submissions on that issue dated 20 June 2025, Bayer characterised the basis upon which it understood the documents were to be used in the following way:

“Sandoz’s experts understood Sandoz as asking them to give their interpretation of what had happened during the development of the invention by reference to the discovery documents that Sandoz selected, and to give their opinion on whether or not such ‘facts’ supported their first-round opinion evidence on the objective question of what the person of ordinary skill in the art would think of the prior art.

Sandoz’s experts duly gave their opinion on those matters. Bayer understood them to be giving such an opinion, as did the Court.”

* emphasis in original

22. Having considered the positions of the parties as set out by them after the documents had been introduced into evidence, I ultimately decided to proceed in the following way (as set out at paragraph 417):

“I propose, therefore, to deal with the documents on the basis that they were being relied on for the purpose that Bayer says it understood them to have been deployed. I note, however, that the documents, in the absence of oral evidence from those involved in the development process, could only ever give a very limited picture of what was actually done by Bayer during development and the significance of the secondary evidence is therefore quite limited.”

Application for protective measures

23. As noted above, prior to the commencement of the trial, Bayer issued a motion seeking to protect the confidentiality of the trial documents, i.e. the documents opened at trial and thus no longer bound by the protection of the confidentiality agreement in the absence of further order. Orders were sought pursuant to Order 63A, rule 5 and/or rule 6(1)(x) and/or rule 6(2)(b) of the Rules of the Superior Courts (“the Rules”) and/or pursuant to the inherent jurisdiction of the court that the trial be conducted in such a way as to preserve the confidentiality in the confidential trial documents. In the alternative, Bayer relied on section 45(1)(d) of the Courts (Supplemental Provisions) Act 1961 or the inherent jurisdiction of the court for an order that certain parts of the trial be heard in camera.

24. The application was grounded on an affidavit of Elisabeth Haselhorst, European Patent Attorney at Bayer.

25. Her affidavit described the background to the application, Bayer and Bayer’s research and development work in general terms. At paragraph 18, she averred:

“It is important to point out that all R&D projects involve the creation of confidential and highly valuable information, even where a drug cannot get to approval. Such confidential information would be of immense value to any competitor. In particular, they could avoid the cost, time and effort involved in generating that information and use it for competitive advantage.”

26. She then described the development of rivaroxaban, the drug the subject of the Patent, which is marketed as Xarelto. Regarding the process of development of the Patent, the dosing regimen for rivaroxaban, she said only the following:

“The identification of rivaroxaban as a drug candidate for further development led to pre-clinical and clinical studies over a period of years. In the course of these years of inventive research, Bayer was able to show that rivaroxaban could be used safely and effectively in patients for a large number of indications when administered no more than once daily.”

27. She averred that the total cost of its development had been in the region of €2 billion. She noted that in 2023 and 2024, Bayer had worldwide gross sales of Xarelto totalling almost €8 billion.

28. The affidavit then set out the lengths that Bayer go to to “protect” its research, and contrasted the position of companies producing generic drugs, such as the plaintiffs, with that of companies like Bayer which develops new drugs. The affidavit contained a section detailing the steps that Bayer has taken to protect its confidentiality in parallel proceedings in other jurisdictions in which the Patent has been challenged. At paragraph 38 of her affidavit, Ms Haselhorst, stated that information “regarding, and data arising from, research and clinical trial processes is typically regarded as valuable” and listed how such information and data may potentially be used.

29. The affidavit contained two sections headed “Bayer’s concerns as to unnecessary disclosure of its documents in these proceedings” and “Bayer’s concerns”. Under those headings, Ms Haselhorst averred(at paragraph 79):

“These documents concern and revealed details of internal Bayer processes and information including Bayer’s approach to planning a clinical development programme, designing clinical trials, consulting with and communicating with internal and external stakeholders (Including consultants, clinical experts, trial investigators, etc.), deciding on criteria governing progression from one step to another, analysing clinical and commercial factors, etc. and crucially results of clinical studies sponsored by Bayer, discussions about, analyses of, and conclusions taken from such results, and deliberations and decision making leading to and from those results. The documents are, as such, inherently confidential and commercially sensitive. Notwithstanding the passage of time since development of Xarelto®, these documents remain confidential and if made public would disclose confidential internal Bayer processes and information to direct generic competitors, in circumstances where those competitors’ development of generic versions of Bayer's original product is much more recent.

Moreover, Bayer continues to develop treatments in the cardiovascular treatment space and otherwise, and may yet hope to derive commercial and competitive advantages from the information contained in these documents as set out [above].”

30. In the application on 31 July 2025, it was argued that the “thrust of” Ms Haselhorst’s evidence was that “this is a body of documents giving an insight into Bayer’s confidential processes.” It was argued by Bayer that there was no evidence put forward by the plaintiffs in response and that there was no evidence “from a person in the industry” to say that this kind of information is not commercially sensitive.

31. Sandoz did, however, deliver a replying affidavit from Ann Henry, solicitor for the plaintiffs. She explained her professional expertise, noting that she had been involved in many patent proceedings involving challenges to, or claimed infringement of, patents and that none had been held in camera notwithstanding that some cases involved discovery being made subject to a confidentiality agreement. She referred to one case in her experience in which an order granting some form of protection was put in place for “properly classified confidential documents, where clear and immediate issues of commercial sensitivity arose” (Ranbaxy Laboratories Ltd v Warner Lambert Company, Record No. 18683/2004P). Although there were written judgments of the High Court and Supreme Court in those proceedings, neither contain reference to that order).

32. In her affidavit, she averred that there is no substance to Bayer’s concerns regarding the plaintiffs gaining a competitive advantage in circumstances where, on Bayer’s own evidence, the plaintiffs were, at that date, ready to launch a generic version of rivaroxaban, and Bayer’s sales of Xarelto had already been impacted by competition from generics. At the hearing of the motion, I was advised that the plaintiffs have, since the judgment, launched their own generic product.

33. Ms Henry referred to the fact that there is a “sea of published information” about rivaroxaban’s development, and contended that there is no exceptionality in this case which would require the measures sought.

34. During the hearing of the application at the outset of the trial, the court’s attention was brought to the approach of the courts in England and Wales in similar scenarios, although it is important to note that the position there is regulated by Rules of Court. In that jurisdiction, it appears, the court often make an interim order protecting the confidentiality of documents opened in court during trial, subject to an application for permanent orders at the conclusion of the trial. This enables the court to address relevant factors in determining whether to make permanent orders which it can only do once it had delivered judgment in a case, such as, for instance, the centrality of the document to the proceedings and, of course, whether the information contained in the document merits protection. While expressing the view that the permanent order sought by Bayer was “at the very least premature”, the mechanism employed in the neighbouring jurisdiction appeared to offer a means by which the interests asserted by Bayer could be protected on an interim basis without offending the constitutional obligation that justice be administered in public. Accordingly, I made the interim confidentiality order.

35. No additional evidence was adduced for the purpose of the application to make the interim order made on 30 April 2025 permanent. Both parties relied, of course, on the evidence adduced during the trial and the contents of the judgment.

36. Before considering the parties’ arguments, it is necessary to consider first the jurisdiction invoked.

The jurisdiction invoked

37. Article 34.1 of the Constitution provides as follows:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

38. Although Bayer references relevant statutory provisions regarding trade secrets and, in particular, the European Union (Protection of Trade Secrets) Regulations 2018, which give effect to Directive (EU) 2016/943 (“The Trade Secrets Directive” or “the Directive”), it accepts that there is no statutory provision allowing for a trial other than in public on the basis that a trial in public may cause confidential information to be revealed. The rules referenced in the motion provide for nothing more than the court’s regulation of its own processes and certainly do not confer any express authority on a court to make orders of the type sought.

39. Section 45(1) of the Court (Supplemental Provisions) Act 1961 (“the 1961 Act”)

provides as follows:

45.—(1) Justice may be administered otherwise than in public in any of the following cases:

(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;

(b) matrimonial causes and matters;

(c) lunacy and minor matters;

(d) proceedings involving the disclosure of a secret manufacturing process…

40. Though sub-section 1(d) allows for a trial in camera where the proceedings involve the disclosure of a secret manufacturing process, Bayer does not contend that anything in the confidential trial documents discloses any such process. Bayer must, therefore, rely on the court’s inherent jurisdiction, identified by the Supreme Court in Gilchrist and Rogers v Sunday Newspapers [2017] IESC 18; [2017] 2 IR 284.

41. The plaintiffs in Gilchrist were officers in the State’s witness protection program who alleged defamation by the defendants. The Commissioner of An Garda Siochána was joined as a notice party to the proceedings and applied to have the case heard in camera. The Commissioner’s application was grounded on an affidavit of a Detective Chief Superintendent who averred, inter alia, that a hearing in public would “inevitably lead to the identification of witness protection officers both past and present. Such identification would place not only their lives in danger but also the lives of their families and indeed of protected witnesses with whom they have dealt in the past and with whom they might deal in the future.” The Court of Appeal acceded to the Commissioner’s application. Leave to appeal was granted by the Supreme Court.

42. O’Donnell J (as he then was) delivered the judgment of the court. In the opening passages of the judgment, he referred to Article 34.1 of the Constitution and the importance of the principle that justice be administered in public, citing a variety of statements of the principle that the administration of justice in public is a necessary check on judicial power and to ensure confidence in the administration of justice. These included the decision of the House of Lords in Scott v Scott [1913] AC 417 in which Lord Shaw of Dunfermline invoked Jeremy Bentham:

“[2]… Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

43. However, having reviewed several such statements of principle, he observed:

“[4] However, this case cannot be resolved by merely invoking a general statement of unbending principle. Every statement of the importance of open justice, of which Article

34.1 of the Irish Constitution is one powerful example, recognises that it is not an absolute principle, and it may be subject to exceptions. This case raises difficult questions in relation to the identification of such exceptions, the justification for them, and the manner in which such matters should be determined.”

44. The judgment refers to the “surprising number” of statutory provisions permitting or requiring hearings other than in public, including section 45(1) of the 1961 Act.

45. The judgment reviewed the relevant authorities. These included Re R Ltd [1989] IR 126, oppression proceedings in which, though there was provision in law for hearings other than in public, the Supreme Court concluded that an order under the relevant provision could only be justified if it could be shown that the administration of justice in public would by itself operate to deny justice in the particular case or impede the doing of justice between the parties.

46. In addition, reference was made to Irish Times Ltd v Ireland [1998] 1 IR 359, the result of which, as O’Donnell J put it in Gilchrist (at paragraph 30), “undoubtedly put a qualification of the more absolute approach which was understood to have been established by In re R. Ltd. [1989] I.R. 126. It was plain that there could be a restriction on trial in public on matters coming within the inherent jurisdiction of the court, and without any post- 1937 statute providing for such a limitation.” At paragraph 36 of his judgment, O’Donnell J observed that both cases contained important statements of principle which may need to be refined in light of further experience.

47. The newspaper in Gilchrist argued that the only circumstance justifying a departure from the normal rule is where it can be shown that justice cannot be administered otherwise than in public. The court concluded that even if that were the test, it had been met in the circumstances of that case. But it considered such a threshold too restrictive:

“[42] In my view it is not necessary to read Article 34.1 down to the point where the only exception permissible in respect of any subject matter is where it can be demonstrated that justice simply cannot be done otherwise. While that consideration is certainly a thread running through many of the cases, and where present will certainly justify a hearing other than in public, it cannot explain them all. A couple should not have to go to the lengths of contemplating withdrawing an application for a divorce, separation, or for custody of children, to secure a hearing in private of personal matters. It is true that the interest of administration of justice between the parties is engaged in such a case, but so too is the importance of protecting family life and of avoiding the insult to the dignity of the individual by requiring that intimate matters be aired in a public hearing, with a risk of wider publicity. Conversely, one party to a relationship ought not to be able to bring pressure to bear on the other and perhaps more sensitive partner by demanding a hearing in public as a constitutional entitlement.

In a case where justice cannot be done or cannot be done without damage to important constitutional values, it is appropriate to provide for the possibility of a hearing other than in public, albeit that it is a matter for the court to decide whether any departure from the standard of a full trial in public is required and if so what measures are the minimum necessary. Similarly it may be possible to conduct wardship matters in public but to do so pay too high a price in terms of basic ideas of human dignity. If a person suffers from a disability so as not to be able to manage their affairs and thus requiring the court to exercise a parental jurisdiction, there is no reason why those affairs, unlike the affairs of any other citizen, should be ventilated in public. The case of secret processes is another example which cannot be made to fit easily into the strict pattern of hearings in private only when it can be demonstrated that justice cannot be done otherwise. In such a case, justice can be done, at least between the parties in the sense that damages can be awarded and an injunction granted. But if so, it is at an unacceptable price of damage to an interest which by definition the law considers worthy of protection. If it is said that a hearing in private is justified in such a case but only because justice could not be done otherwise in the sense that litigation to protect an interest should not put it at risk, then in truth the concept of the administration of justice is being broadened significantly beyond the question of the resolution of the specific issue raised between the parties.

[43] The fact that Article 34.1 of the Constitution states in explicit terms any hearing in private is an exception to a fundamental constitutional rule means that any such exception must be strictly construed. A demonstration that it is not possible to hear and determine a case fairly is certainly a powerful consideration justifying a hearing other than in public, but it cannot be the sole touchstone of the circumstances in which it is appropriate to have a hearing in private. In the area of the public interest and national security, for example, a State party should not be required to choose between maintaining national security at a cost of failing to prosecute one claim or conceding another, and defending or prosecuting a case at the price of damage to an important public interest, if it is possible to administer justice without destruction of that public interest.”

48. The applicable principles are then helpfully summarised at the conclusion of the judgment: “[46] … Accordingly, I would summarise the principles as follows:-

(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule.

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public.

(iv) Any such exception may be provided for by statute but also falls under the common law power of the court to regulate its own proceedings.

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing…

(vi) If it can be shown that justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done)

and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.

(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that the court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that the case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera.

49. The court was satisfied that there were grounds for that case being heard in camera, noting that the interest “most at stake in these proceedings is the public interest in maintaining the security and confidentiality of a functioning witness protection programme.”

50. It is worth noting that the judgment itself recognises that it does not purport to provide an answer to all questions regarding possible exceptions to the general rule that justice must be administered in public. Noting that Gilchrist involved a dispute in which the parties had taken extreme positions (a hearing fully in public against a hearing fully in camera) and in which there had been no exploration of “intermediate positions”, which the court had expressly concluded must be considered at (vii) of the above-quoted principles, O’Donnell J observed:

“[17] … This decision therefore is one which may require to be revisited in the context of further argument where more nuanced possibilities may arise, even in this case.”

51. In BOC Aviation Ltd and Ors v Lloyds and Ors [2024] IEHC 162, the High Court (McDonald J) dealt with an application by the plaintiffs that the witness statement of a particular witness be redacted and protected from disclosure and that measures be put in place to protect the identity of the witness in the course of the trial. It was contended that the expert would be at risk of harm if their identity was made public.

52. The court approached the matter by first considering whether the plaintiffs had established that the expert could be at a real risk of harm if identified. McDonald J analysed the evidence in detail, including evidence of whether an alterative witness could be found, where the risk would not arise, and concluded that the risk of harm had been established by the plaintiffs. In light of that finding, he then considered the application of the Gilchrist principles.

53. The court noted that it approached the application “with resolute scepticism” as required by those principles. He concluded that the plaintiffs had identified a strong countervailing interest to the requirement to administer justice in public:

“54. For the reasons discussed in paras. 50 to 51, I am of the view that the plaintiffs have established a strong countervailing interest, namely a risk of harm to the expert.

That seems to me to qualify as both a clear interest and a pressing circumstance. My attention has been drawn to a number of authorities where the right to a person’s good name was regarded as sufficient. It follows that the risk of harm either to liberty or to the person must also qualify.”

54. He concluded that there was no lesser restriction than that proposed which would prevent the risk of harm and accordingly the restrictions were necessary within the meaning of the Gilchrist test.

55. During the course of the initial hearing, leading to the interim order, the parties referred to the transcript of a ruling by the High Court (Hedigan J) in Teva v Boehringer Ingelheim, Record No. 1/2014 PAP in which, in the context of a costs application, the court made an order permitting Teva to present evidence in camera regarding its interaction with the regulator in relation to a recent market authorisation process. As appears from the transcript, the order was made pursuant to section 45(1)(d) of the 1961 Act in circumstances where the court concluded that the proceedings involved the disclosure of a secret manufacturing process. The court concluded that it was “not realistic” to expect Teva to reveal the confidential details of its application.

Jurisdiction in England and Wales

56. Rule 31.22(2) of the Civil Procedure Rules (CPR) of England and Wales enable a court to make an order of the type sought by Bayer here:

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

57. It is clear from the case law, however, that it is not an order readily made and that there is a high threshold to establish the entitlement to such an order. The applicable principles were considered in Lilly Icos Ltd v Pfizer Ltd [2002] 1 WLR 2253. As here, the claim was for revocation of a patent on the grounds of obviousness in which the patentee disclosed various material to the challenger pursuant to a confidentiality agreement. One document disclosed was a two-page schedule showing, on the first page, sales figures for the product, and on the second, advertising expenditure. At the end of the proceedings, the patentee sought an order pursuant to CPR 31.22(2) in relation to the second page of the document. The trial judge refused the order notwithstanding that it was unopposed. In the Court of Appeal, Buxton LJ emphasised the importance of justice being administered in public:

“[9] The central theme of these rules is the importance of the principle that justice is to be done in public, and within that principle the importance of those attending a public court understanding the case. They cannot do that if the contents of documents used in that process are concealed from them: hence the release of confidence once the document has been read or used in court. As this court recognised in the Connaught Laboratories Inc case, there may be some artificiality about that approach. That is because full access to documents deemed to have been read or used in court may give third parties at least the possibility of much more fully studying and understanding the case and the issues in it than if they merely heard the documents read aloud.

Nevertheless, that paradox helps to underline this court's concern that economical means of using and referring to the documents, understood amongst the lawyers, should not exclude the spectators from comprehension of the case.”

58. The court observed that while note may be taken of confidentiality agreements, a court will not be bound by them because, first, patent litigation is of considerable public importance, involving, as it might, potential restrictions in competition in goods of public benefit, and second, because third party rights are engaged.

59. The court, having considered the approach of the trial judge, set out the principles it applied. In doing so, the Court relied on one of the same passages from Scott v Scott cited by the Supreme Court in Gilchrist:

“[25] It may be convenient to set out a number of considerations that have guided us.

(i) The court should start from the principle that very good reasons are required for departing from the normal rule of publicity. That is the normal rule because, as Lord Diplock put it in Home Office v Harman [1983] 1 AC 280, 303, citing both Jeremy

Bentham and Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”. (Benthamiana, or Select Extracts from the Works of Jeremy Bentham (1843), p 115.) The already very strong English jurisprudence to this effect has only been reinforced by the addition to it of this country's obligations under articles 6 and 10 of the Convention.

(ii) When considering an application in respect of a particular document, the court should take into account the role that the document has played or will play in the trial, and thus its relevance to the process of scrutiny referred to by Lord Diplock. The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document. However, in particular cases the centrality of the document to the trial is a factor to be placed in the balance.

(iii) In dealing with issues of confidentiality between the parties, the court must have in mind any “chilling” effect of an order upon the interests of third parties: see paragraph

5 above.

(iv) Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. Those reasons will in appropriate cases be weighed in the light of the considerations referred to in sub-paragraph (ii) above.

(v) It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private. In the present case, the manner in which the documents were handled, together with the confidentiality agreement during trial, enabled the whole of the trial to be held in public, even though the judge regarded it as justified to retain confidentiality in respect of a significant number of those documents after the trial was over. The court should bear in mind that, if too demanding a standard is imposed under CPR r 31.22(2) in respect of documents that have been referred to inferentially or in short at the trial, it may be necessary, in order to protect genuine interests of the parties, for more trials or parts of trials to be held in private, or for instance for parts of witness statements or skeletons to be in closed form.

(vi) Patent cases are subject to the same general rules as any other cases, but they do present some particular problems and are subject to some particular considerations.

As this court pointed out in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, patent litigation is of peculiar public importance, as the present case itself shows. That means that the public must be properly informed;

but it means at the same time that the issues must be properly explored, in the sense that parties should not feel constrained to hold back from relevant or potentially relevant issues because of (legitimate) fears of the effect of publicity. We venture in that connection to repeat some words of one of our number in Bonzel (T) v Intervention Ltd (No 2) [1991] RPC 231, 234:

“the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear evidence in relation to documents which are privileged which could be used in other jurisdictions, would tend to make patentees reluctant to disclose the full position. That of course would not be in the interest of the public.”

In our view, the same considerations can legitimately be in the court's mind when deciding whether to withdraw confidentiality from documents that are regarded by a party as damaging to his interests if used outside the confines of the litigation in which they were disclosed.”

60. In that instance, the uncontested evidence was that information of the type contained in the second page of the document was regarded as “axiomatically confidential” by everyone in the industry. In circumstances where no argument had been advanced in the proceedings by reference to the document, which only happened to be mentioned in passing in a witness statement, the court felt that it could take a less demanding approach than might otherwise be the case to the claim for confidentiality, and made an order maintaining confidentiality in that part of the document.

61. In Smith & Nephew plc v Convatec Technologies [2014] EWHC 146 (Pat), the High Court (Birss J) was asked to make a permanent order in respect of three categories of documents, those which disclosed the plaintiff’s manufacturing process, its dealings with regulatory authorities, and its commercial strategy. The case had proceeded with an interim order in place.

62. The court described the documents relating to the plaintiff’s manufacturing process in the following way:

“3. Unquestionably that information can properly be characterised as a trade secret of Smith & Nephew. It is highly confidential, technical information which would be of enormous value to a competitor. Its public disclosure would be very damaging to Smith & Nephew. Ordinarily no rational commercial organisation would voluntarily do anything which put this information in the public domain. However the technical information is at the heart of the issues in the case. It would have been quite impossible to decide this case fairly without that disclosure and the evidence relating to it. In order to decide the question of patent infringement in this case it was necessary to analyse and consider detailed technical evidence which was based on that disclosure.”

63. However, Birss J was less convinced of the necessity for an order in relation to the other two categories of documents. Further evidence was submitted by the plaintiff.

64. Having considered the further evidence, the court made an order in relation to the documents regarding the manufacturing process, noting that justice could not have been done without that evidence being adduced. He was also satisfied to make the orders in relation to the documents concerning the plaintiff’s commercial strategy, but refused the order in respect of documents regarding dealings with regulatory authorities (where they did not also relate to commercial strategy or the manufacturing process). He observed that some of the documents had been discussed in evidence and he could not see how they could be said to disclose the plaintiff’s know how. His judgment specified the documents, or parts thereof, which would be covered by the Rule 31.22(2) order.

65. Reference was made in submissions to a number of other cases dealing with the jurisdiction under CPR 31.22(2) including the decision of the Court of Appeal in JC Bamford Excavators Ltd v Manitou UK Ltd [2024] Ch. 215. In that case, the plaintiff had succeeded in establishing that the defendant had infringed one of its patents. The case had proceeded, just as in Smith & Nephew, pursuant to an interim Rule 31.22(2) order. The judgment was delivered with a confidential annex dealing with the confidential documents. The defendant sought a permanent order pursuant to Rule 31.22(2) and an order that the annex to the judgment be redacted prior to publication. The High Court found the information to be confidential but refused the orders sought. The plaintiff appealed the finding of confidentiality, and the defendant appealed the refusal of the order.

66. The Court of Appeal rejected the appeal against the finding of confidentiality, indicating that the degree of confidentiality attaching to the documents was “not high”, but that didn’t mean that they were not confidential at all.

67. The court allowed the defendant’s appeal and granted the order sought, noting that the “crucial point” was the correct characterisation of the defendant’s claim. The court concluded that the information that the defendant was seeking to protect “is properly characterised as technical trade secrets” and that it was entitled to protection in relation to that information.

68. Unwired Planet International Ltd v Huawei Technologies Co. Ltd [2018] RPC 8 involved an application that a judgment be redacted. The High Court (Birss J) noted that “[r]edactions will require powerful reasons, supported by cogent evidence which addresses the details. Generalities will not do.” He identified relevant factors:

“24. Factors which will be relevant include:

(i) the nature of the information itself: for example cases in which some redaction may more readily be accepted could include technical trade secrets and private information about family life.

(ii) The effect of the publication of the information. This will be a critical factor. If publication would be truly against the public interest then no doubt the information should be redacted. If publication would destroy the subject matter of the proceedings - such as a technical trade secret - then redaction may be justified. The effect on competition and competitiveness could be a factor but will need to [be] examined critically.

(iii) The nature of the proceedings: for example privacy injunctions and competition law claims may require some redaction while an intellectual property damages claim may not. The point is not that different kinds of case demand a different approach, it is that the balance of factors will change in different cases (e g the need to encourage leniency applications in competition law).

(iv) The relationship between the information in issue and the judgment (as well as the proceedings as a whole). Obviously judges do not deliberately insert irrelevant information into judgments but not every word of a judgment is as important as every other word. It may be that some sensitive information can be redacted without seriously undermining the public’s understanding of the reasons.

(v) The relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment). For example, a patentee seeking damages for patent infringement on a lost profit basis knows that they will have to disclose their profit margin in the proceedings and that those proceedings are public. A third party whose only relationship with the case is that they are a party to a contract disclosed by one of the parties to the litigation is in a different position.”

69. The court accepted that publication of the information in question would “materially weaken the competitive position of the relevant party in each case” and made most of the redactions sought.

Trade Secrets Directive

70. Although Bayer accepts that the information it seeks to protect does not relate to a “secret manufacturing process” within the meaning of section 45(1)(d) of the 1961 Act, it does contend that it meets the definition of “trade secret” for the purpose of the European Union (Protection of Trade Secrets) Regulations 2018 (“the Regulations”) which give effect to the Trade Secrets Directive. The Directive applies where it is contended that a trade secret is being unlawfully disclosed, or unlawfully used. ‘Trade secret’ is defined at Article 2(1) of the Directive:

(1) ‘trade secret’ means information which meets all of the following requirements:

(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) it has commercial value because it is secret;

(c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret…

71. Regulation 11 of the Regulations gives effect to Article 9 of the Directive. Article 9 provides that Member States must ensure appropriate measures to protect trade secrets are taken in court proceedings relating to such unlawful disclosure or use, including the holding of in camera hearings, and the redaction of judgments. However, the obligation of Member States to ensure such measures ceases to have effect:

(a) where the alleged trade secret is found, by a final decision, not to meet the requirements set out in point (1) of Article 2; or

(b) where over time, the information in question becomes generally known among or readily accessible to persons within the circles that normally deal with that kind of information.

72. Although unlawful use of a trade secret was not the issue in these proceedings, Bayer contends that the Directive involves a recognition of “the need to protect confidential commercial information”.

Arguments

73. Bayer argues that the Supreme Court has recognised that where an interest of clear value would be jeopardised by an absolute or unyielding application of the principle that justice be administered in public, it is appropriate to consider whether measures necessary to protect that interest are acceptable. It commends the approach of the courts of England and Wales to determining the question of whether departing from a trial entirely in public is justified in the particular circumstances of this case. It argues that it satisfies the threshold for making such an order having regard to the jurisprudence from that jurisdiction.

74. It contends that what it seeks to protect “is the confidentiality of its internal development processes”, the confidentiality of which is explained by Ms Haselhorst, but is in any event “self-evident”. It argues that the principle of protecting this kind of information is also established by the Trade Secrets Directive.

75. It relies on the fact that it was defending its patent rather than seeking to enforce its rights when disclosing the information in these proceedings. It refers to paragraph 417 of the judgment to contend that the confidential trial documents were of “very limited significance” in the case, and that, accordingly, the redactions sought do not impact materially or at all on the public’s ability to understand the judgment.

76. It makes significant play out of the basis upon which discovery was sought, contending that it would not have agreed to their disclosure had they known the basis upon which they would be deployed. It argues that disclosure is not warranted in the public interest, but also in the interests of justice as between the parties. It suggests a chilling effect on the willingness of patentees to make voluntary discovery should no order be made here.

77. In response to a criticism from Sandoz that the claim to maintain confidentiality was too generalised and not made by reference to specific documents, counsel explained that the concern is about revealing information in relation to a “general process”. Bayer points out that Sandoz has not put forward any expert evidence to the effect that the information is not very valuable information.

78. Sandoz, in its submissions, contends that the claim of commercial sensitivity over the documents does not withstand scrutiny and that no damage could accrue to Bayer if the orders sought are refused. Sandoz argues that Bayer has taken an inconsistent approach to the material over which it asserts confidentiality and its claim must be considered in the context of what is already in the public domain, including what Bayer has voluntarily put in the public domain.

79. It further argues that, per Gilchrist, only a current and pressing risk of damage can oust open justice and no such risk has been identified or exists in this case. Finally, it argues that if the approach taken in England and Wales were “mapped onto” Gilchrist, no order would be made here.

Discussion

80. Despite the temptation to view this application through the lens of the case law of England and Wales where similar issues have been canvassed, it is Gilchrist which provides the applicable framework. In Gilchrist, the court recognised that the circumstances in which there may a departure from the constitutionally mandated obligation that justice be administered in public were not confined to those instances where provision had been made in statute for such a departure. However, where there is no provision in statute, the interests involved must be “very clear and the circumstances pressing”. Put otherwise, an interest may be recognised by statute as being worthy of protection, e.g. in family law or wardship proceedings, but where there is no such recognition in statute, it is for the party seeking protection to establish the existence of a clear interest and a pressing need for the protections sought, i.e. an imminent risk of harm if the protections are not put in place.

81. In this case, Bayer has placed reliance on the fact that information of a type it seeks to protect here has been identified as meriting protection in statute: in section 45(1)(d) of the 1961 Act and in the Trade Secrets Regulations. That is an argument which cuts both ways.

The legislature has recognised that certain types of confidential information are capable of protection in particular types of cases. Although Bayer argues that this suggests that the confidential information may be entitled to protection generally, it is equally plausible to argue that the legislation has defined the specific circumstances in which restrictions of public access to proceedings may be justified and that, at least, the identification of those specific circumstances does not provide any support for a more general entitlement to protection.

82. The courts of England and Wales have identified that the protection of confidential information may justify a departure from an open justice requirement, depending on the nature of the information and the circumstances in which it is deployed in litigation. Of course, the rules of court there provide a general jurisdiction to depart from open justice and there is a different constitutional architecture in play, which does not allow for a direct read across. However, it is clear from that case law that our constitutional requirement that justice be administered in public is also afforded significant weight in that jurisdiction and any departure requires “very good reasons” (Lilly Icos), thus the approach of the courts there is instructive.

83. In light of Gilchrist and BOC Aviation, informed by the case law of England and Wales, I accept, as I did when making the interim order, that there may be circumstances in which an order of the type sought in this application are justified. In the absence of any applicable statutory provision, notwithstanding that there are some statutory exceptions for confidential information, it seems to me that the making of such an order must be regarded as exceptional and could only be justified by compelling reasons.

84. One of the relevant considerations identified by the courts of England and Wales relates to how and why the relevant information is deployed (see, for instance, Unwired Planet International at paragraph 24(v)). Bayer argues that it is relevant here that it was the defendant in this action and that it did not have the choice of litigating at the expense of its information or not litigating. But that argument rather misses the point that Bayer was unsuccessful in that defence. Bayer elected to defend a patent to which, in this jurisdiction at least, the court has concluded it was never entitled. It was, of course, entitled to defend the proceedings, but it cannot be heard to complain of injustice in having made disclosure, and potentially lost confidentiality, in defence of a monopoly of which it should never have had the benefit.

85. Furthermore, it must be observed that the patent has been declared invalid on the grounds of obviousness. Put otherwise, the judgment concluded that the invention the subject of the Patent was obvious to a person skilled in the art and did not involve an inventive step. As made clear in the judgment, I concluded that the documents over which Bayer now seeks protection were consistent with the plaintiff’s complaint that the Patent was obvious, rather than Bayer’s defence that it involved an inventive step (see, for instance, paragraph 468 of the judgment). While that does not mean that Bayer’s documentation

regarding the development of the Patent could not contain confidential information, it certainly undermines any suggestion that it is inherently confidential.

86. Bayer renews a criticism of the manner in which the discovery documentation was sought and then used in the proceedings. However, as is clear from the judgment, the documentation was treated by the court precisely as Bayer say that they had understood it would be treated when making disclosure. There is thus no basis for this complaint. Bayer says it would not have agreed to discovery if Sandoz had explained its apparent view that the documents “that the only facts that the Court was free to find on the basis of them, were facts which supported Sandoz’s challenge.” I do not recognise any argument of Sandoz from this characterisation, but in any event, that is not the way in which the material was treated. The fact that Bayer was commendably co-operative in agreeing to make voluntary disclosure at an early stage cannot, of itself, create an interest worthy of protection by the court where no such interest otherwise exists. Nor can a speculative concern that refusal to make an order here might make parties reluctant to provide voluntary disclosure in future cases justify a departure from the constitutional requirement that justice be administered in public.

87. Moreover, it is worth noting that many of the documents over which Bayer now asserts an interest to protect, Bayer, not Sandoz, first put into evidence.

88. Bayer makes a related complaint that Sandoz is pursuing a private interest in opposing its application. Ms Haselhorst suggests in her affidavit that the documentation will assist the plaintiffs in bringing a generic competitor to market and that the plaintiffs may wish to rely on the documentation in parallel proceedings. As noted above, I was informed during the hearing of this application that the plaintiffs have already launched a generic version of rivaroxaban which can be dosed once daily, so that concern does not appear to arise. However, I have no doubt that Sandoz does have its own interests in mind in opposing this application rather than some high-minded desire to protect the principle of open justice. But it is as entitled to pursue its own interests as is Bayer. Moreover, Sandoz’s involvement in opposing this application has been of significant assistance to the court. The benefit of such opposition has been recognised in the jurisprudence, and the necessity for a legitimus contradictor is made clear in Gilchrist. Had Sandoz not opposed the application, it would

have been necessary for the court to consider taking steps to ensure that the arguments against the orders sought were fully articulated.

89. I turn then to the question of whether Bayer has met the very high bar to warrant the making of the exceptional orders it seeks. The approach taken in BOC Aviation was to first ask whether the plaintiffs had established on the evidence a real risk of harm to the life of the witness concerned. The corresponding question here is whether Bayer has established a real risk of harm to its commercial interests in protecting its company information. This involves two separate issues. First, whether the information the subject of the application is, as Bayer suggests, information which is “inherently confidential”, and second, if so, whether any risk of harm to Bayer from disclosure of that confidential information has been established.

90. Only if such a risk is established does the question arise as to whether an order of the type sought by Bayer is justified having regard to the constitutional imperative that justice be administered in public.

91. In order to assess Bayer’s overarching contention – that the information is confidential in nature – it is necessary, as the Court of Appeal identified in JC Bamford – to correctly characterise the information. In this regard, it is noteworthy that Bayer has made no effort to identify with any particularity what it is in the confidential trial documents which it claims is worthy of protection. The averments in Ms Haselhorst’s affidavit, which pre-dated the trial, are entirely generic. There is no direct reference to any of the documents in issue, nor any specific reference to the development of the drug the subject of the Patent, rivaroxaban. In circumstances where it does not assert confidentiality over all of the trial documents, its failure to explain why others remain confidential is a notable omission.

92. What the court is left with is Bayer’s assertion that the documents overall reveal its internal development process. Had Bayer’s internal development processes been entirely hidden from view, the assertions of confidentiality and potential harm could readily be understood. However, that is very far from the case. Firstly, as noted, Bayer does not assert confidentiality over a number of trial documents which by themselves reveal its internal development process. Secondly, the development process of the Patent has already been extensively publicly discussed by Bayer in numerous journal articles, some of which are referenced in the judgment (at paragraphs 452 and 453), though there were many more discussed in evidence. And thirdly, as the judgment records (at paragraph 454):

“… all the experts were able to confirm that the drug development process revealed by the documents was consistent with their expectations for how a new anticoagulant drug would have been developed at the priority date…”

93. This, of course, is a reference to the confidential trial documents the subject of this application and is evidence which wasn’t available to the independent third party in reaching his conclusion on the confidentiality of certain documents. I agree with the conclusion in Lilly Icos that a confidentiality agreement (or a dispute resolution process provided for in such an agreement) should not bind a court for the reasons stated in that judgment, albeit that account should be taken of it. But in any event, in this case it is clear that the court is being asked to assess the application before it on the basis of evidence not available in that earlier process.

94. It appears, therefore, that what Bayer seeks to protect is a small body of documents which reveal, overall, that Bayer’s process for developing the Patent was precisely what the experts would expect it to have been and which Bayer has described in some detail elsewhere. Whether they would have had that expectation at the priority date is not a relevant consideration. The question is whether Bayer has an interest to protect now. Against that background, Bayer’s failure to elaborate on Ms Haselhorst’s entirely generic averments that documentation of this sort is “typically regarded as valuable” fatally undermines its application. Nowhere does Bayer identify anything within the documents the subject of this application documents which reveal or disclose something more than has already been revealed, or something different than what any person within the industry would expect.

95. In those circumstances, the documentation cannot be said to meet the definition of trade secrets within the Directive, to the extent that that might be relevant. Whether the documentation ever met the requirements of Article 2(1)(a), the evidence from the trial is that the information about Bayer’s internal development process revealed by the documents has become known to those within the circles who normally deal with this type of information. Nowhere in Bayer’s application does it identify anything which is not more generally known, or anything the disclosure of which would cause it harm. Rather, Bayer’s application consists of precisely the sort of general assertions of confidentiality deprecated in the case law discussed above as being insufficient. Bayer are correct when it points out that Ms Haselhorst’s affidavit has not been replied to by an industry expert, and to some extent is “uncontested” (which is not to diminish the expertise of Ms Henry in intellectual property litigation), but in circumstances where Ms Haselhorst’s affidavit does not meet the evidential standard required to ground the orders sought by Bayer, this observation does not avail it.

96. I accept Bayer’s proposition that documents which reveal an internal process may collectively be regarded as confidential and the disclosure of those documents could render harm. However, in the circumstances presenting here, Bayer has not established that the body of documents contain anything the disclosure of which presents a risk of harm to Bayer, still less that there is a clear need for protection for reasons which are pressing.

97. This is most obvious in relation to the redactions to the judgment. Sandoz argues that there is an inconsistency between the proposed redactions in the transcript and those proposed in the judgment. Bayer explained its approach in oral submissions:

The approach in the transcripts was different from the approach in the Court to the judgment because, in terms of the judgment, Bayer did not want, ultimately, to seek redaction for any -- for the Court's view of what the documents meant, but just something that recited what was in the document.

There isn't the same stringent approach in the transcripts, so that if a witness is being asked about a document, it gives a view and it seems to reflect what was in the document. Those materials are being requested to be redacted. That is the only inconsistency between the two, Judge, and we say that there is a principles basis behind it. (Transcript, 31 July 2025, Page 125, line 9 – 22)

98. Thus the proposed redactions in the judgment are purported to occur only where the judgment recites the content of one of the confidential trial documents. It is not clear to me that this is, in fact, the basis for all the proposed redactions, but more importantly, I am at a complete loss as to how anything which Bayer seeks to redact in the judgment could be said to disclose Bayer’s confidential information that has not otherwise been disclosed. There is no obvious distinction between what is contained in the proposed redacted portions of the judgment and what is dealt with elsewhere. If Bayer accepts, which it must, that the balance of the judgment does not contain valuable confidential information capable of protection, it is impossible to understand how it can be said that the redacted portions do.

99. In circumstances where Bayer’s argument was advanced by reference to the body of documents rather than by reference to specific documents or parts of documents, it is not necessary or, indeed, appropriate that the court carry out its own analysis of each document to see whether there is anything contained therein which might be capable of protection. It was for Bayer to identify and establish information the disclosure of which might cause it harm. This it has failed to do.

100. Bayer argues that the judgment concluded that the secondary evidence was of “very limited significance” and therefore there is no real public interest in disclosing the documents to weigh in the balance against its interest in protecting asserted confidentiality. To be clear, I did not conclude that the documents were of very limited significance. Rather, what was stated was the documents gave a very limited picture of what happened and therefore there relevance was “quite limited”.

101. Notwithstanding that “quite limited” relevance, the documents played a significant part in the trial, as evidenced by the extensive redactions of the transcript that Bayer now seeks, and were sufficiently important to be referenced in the judgment. They are not, therefore, in the same category as the information about advertising spend at issue in Lilly Icos, which was not the subject of any argument and was only referred to in passing in a witness statement, and, therefore, merited a “less demanding” approach. A very demanding approach should necessarily be applied when seeking to protect confidentiality in documents the subject of detailed evidence and argument at trial, all the more so when seeking the redaction of a judgment. In Unwired Planet International, Birss J observed that redaction does not always undermine the public’s ability to understand the reasoning in a judgment. However, redaction certainly carries that risk. It may be that what a judgment decides remains clear notwithstanding redaction, but the public are entitled to know, if they wish to, why a court has so decided. Redaction of anything other than personal information carries the risk of diminishing that understanding and requires, as Birss J stated, “powerful

reasons, supported by cogent evidence.” Those powerful reasons and cogent evidence are absent here.

102. It may be that, in an appropriate case, a less demanding standard might be applied to documents deemed to be opened but never referenced in court, as happened in Lilly Icos. Some of the documents over which Bayer seek protection fall into that category and there is some merit in its argument that the public interest in ensuring that those documents are available to the public is less compelling. But even if that is so, which I do not need to decide here, an order of the type sought could only be made where Bayer was able to assert some countervailing interest in keeping the document confidential. That interest must be established by evidence, not merely asserted. Bayer has failed to establish such an interest and all three aspects of its application must, therefore, be refused.

103. When hearing the application, I queried with the parties how I should deal with publication of the judgment if the application was refused, in whole or in part, having regard to the possibility of an appeal. The parties suggested that the judgment be published with the proposed redactions pending the determination of any appeal, and that a stay be placed on any discharge of the interim order in respect of the transcripts and the other documents pending the determination of any appeal. That is the approach I propose to take.

104. Other than the issues the subject of this judgment, final orders have been made in these proceedings. As this judgment is being delivered electronically, I will indicate my provisional view as to the costs of this application. Bayer has not succeeded in its application for protective measures. I have already indicated above that Sandoz’s participation in opposing the application was of material assistance. Sandoz is, accordingly, entitled to the costs reasonably incurred by that participation. Should either party wish to contend for a different costs order or wish to address the court regarding the terms of any final order on this application, the parties shall have liberty to apply at a mutually agreed time convenient to them both.