Careless Whisper: Court of Appeal gives important judgment on balancing the protection of confidentiality with open justice

07/10/25

The Court of Appeal has given an important judgment in the long-running Optis v Apple litigation ([2025] EWCA Civ 1263), underlining the need to maintain a consistent approach to protecting third party confidential information in judgments.

The dispute between the main parties in Optis v Apple centres on how much Apple should pay to Optis for a fair, reasonable and non-discriminatory (“FRAND”) licence to use Optis’ mobile standard essential patents. The usual starting point for the analysis of what terms are FRAND involves considering “comparable licences” between the same licensor/licensee and third parties, in order to assess what the terms of those agreements suggest the licensee should be paying in the case at issue. 

Since the terms – in particular the financial terms – of patent licence agreements are generally regarded as highly commercially confidential, third parties often wish to restrict the use of their information, and in particular its inclusion in publicly available judgments.

The full version of Marcus Smith J’s judgment following the trial in Optis v Apple ([2023] EWHC 1095 (Ch)) contained a large amount of information from a number of third parties.  Following a hearing in July 2023 attended by third parties, and two subsequent hearings from which the third parties were shut out, the Judge rejected the majority of confidentiality claims.  In particular, the Judge decided in a February 2024 judgment ([2024] EWHC 197 (Ch)) that while the confidentiality of “lump sums” in licence agreements would be protected, “per unit” sums should be unredacted.

A number of the third parties whose confidential information was at stake appealed to the Court of Appeal.  In a judgment in which the other members of the Court concurred, Birss LJ allowed virtually all aspects of the appeal.  Birss LJ agreed with the appellants that “[t]here is no rational distinction between the status of those [per unit] rates and the lump sum in that licence”: [29].  Further, “[t]his information is the third parties’ confidential information and to publish it would cause them real commercial harm”: [68].  The Court agreed with the appellants that the figures in licence agreements should be redacted together with rates capable of being “unpacked” (i.e. derived by expert analysis) from those agreements, and also averaged and total figures from which individual rates could be calculated or approximated: [69].

Importantly for future cases, the Court clarified that, contrary to the Judge’s findings, Bamford v Manitou [2023] EWCA Civ 840 had not introduced a “new test” for the protection of confidential information in judgments; the position remained as set out in the previously established case-law, starting with Unwired Planet v Huawei [2017] EWHC 3083 (Pat).

The Court also underlined that the third parties who claimed confidentiality over information in the judgment ought to have been given the opportunity to be heard regarding which information should be published: [18]. 

Finally, the Court agreed with the third parties that, contrary to the view of the first instance Judge, they “plainly” had standing to appeal: [38]. 

The ruling is a significant vindication of third parties’ rights to participate in the discussion of whether and how their confidential information should be protected in public judgments.  It also endorses the appellants’ arguments that their confidentiality should not be indirectly undermined by publishing information that could be reverse engineered to reveal business secrets.

The judgment can be found here.