Boehringer Ingelheim & Ors v Vetplus Ltd

Following handing down of the main judgment on 20 June 2007, [2007] EWCA Civ 584, the parties could not agree on two aspects of the consequential order. We have received written submission about these. This is our ruling upon them.

Vetplus ask for their costs of the appeal and those before Pumfrey J – to be assessed if not agreed and for a payment on account of £50,000. Boehringer say there should be a deduction because they “won” on the question of disclosure of the material sent in the pre-action letters, said when sent, to be used only for the action. We did not hear the issue because, following discussion, the matter was as a practical matter compromised – see [7] of the main judgment.

I would reject any deduction. Pumfrey J refused an injunction because there was no longer any threat. Most importantly Boehringer had sent the same material to the press on what they claimed was a confidential basis. But sending material to the press and seeking to impose an obligation of confidence at the same time is very close to discarding confidentiality. Besides the material has been discussed generally in open court.

Accordingly I would hold that Vetplus is entitled to their costs here and below. It is also entitled to an order for interim payment on the usual fourteen day basis. I would assess the sum payable as £40,000, the figure asked for being somewhat too high.

Boehringer ask that certain documents concerning tests put in evidence should be subject to a confidentiality order pursuant to CPR 31.22. I would reject that. The material was deployed in open court voluntarily. Moreover there is no evidence to support the application for confidentiality.

I hope the parties can now agree an order and submit it to the court to be entered.

I agree.

I also agree.