AutoStore Technology AS v Ocado Group Plc & Ors [2021] EWCA Civ 1003 (07 July 2021)

AutoStore Technology AS v Ocado Group Plc & Ors [2021] EWCA Civ 1003 (07 July 2021)

The majority held that the parties' agreement, as evidenced by the attendance note and communications, provided that US law discussions (including the disputed document) were to be governed by FRE 408, not English without prejudice privilege, and that the English court should not grant an injunction absent a high degree of probability that Ocado would succeed at trial. Ocado failed to meet this threshold; the balance of irreparable harm did not justify an injunction.

Citation
[2021] EWCA Civ 1003
Parties
Claimant and Respondent: AutoStore Technology AS; Defendant and Appellant: Ocado Group PLC; Defendant and Appellant: Ocado Retail Ltd; Defendant and Appellant: Ocado Solutions Ltd; Defendant and Appellant: Ocado Innovation Ltd; Defendant and Appellant: Ocado Operating Ltd; Defendant and Appellant: Tharsus Group Ltd
Jurisdiction
England and Wales
Judgment Date
07 July 2021
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Interlocutory Injunction
Outcome
Appeal dismissed
Legal Topics
Patent Infringement, Without Prejudice Privilege, Interlocutory Injunctions, Anti Suit Injunctions, Jurisdiction and Comity
Intellectual Property Civil Procedure Contract Patent Infringement Without Prejudice Privilege Interlocutory Injunctions Anti Suit Injunctions Jurisdiction and Comity

Case Brief

Summary, issues, holding and outcome

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Parties

AutoStore Technology AS

Claimant and Respondent

Ocado Group PLC

Defendant and Appellant

Ocado Retail Ltd

Defendant and Appellant

Ocado Solutions Ltd

Defendant and Appellant

Ocado Innovation Ltd

Defendant and Appellant

Ocado Operating Ltd

Defendant and Appellant

Tharsus Group Ltd

Defendant and Appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Interlocutory Injunction

Legal Issues

  1. 1 Whether an interlocutory injunction should restrain use of without prejudice material in foreign proceedings
  2. 2 Whether the parties' agreement protected US-related discussions under English without prejudice privilege or only under US FRE 408
  3. 3 What threshold test applies for grant of such an injunction

Ratio Decidendi

The majority held that the parties' agreement, as evidenced by the attendance note and communications, provided that US law discussions (including the disputed document) were to be governed by FRE 408, not English without prejudice privilege, and that the English court should not grant an injunction absent a high degree of probability that Ocado would succeed at trial. Ocado failed to meet this threshold; the balance of irreparable harm did not justify an injunction.

Court Disposition

Appeal dismissed

Orders

  • Application for interlocutory injunction refused
  • No order restraining AutoStore from using the document in US ITC proceedings