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Court of Appeal dismisses Ocado’s appeal


On Thursday 1 July, the Court of Appeal (Vos MR, Nicola Davies and Nugee LJJ) dismissed an appeal by Ocado Group PLC and others (“Ocado”) in an expedited appeal with reasons to follow.

The appeal was from a written judgment dated Friday 11 June 2021 in the Patents Court (Hacon HHJ) which set aside an ex parte injunction obtained by Ocado against AutoStore Technology AS (“AutoStore”) restraining the disclosure of information.

The parties are engaged in multi-jurisdictional litigation, including litigation before the United States International Trade Commission (“US ITC”) concerning allegations that Ocado has infringed AutoStore’s patents for automated warehousing technology. In the US ITC proceedings Ocado is running a defence of equitable estoppel.

By this application, Ocado sought an injunction to restrain AutoStore from disclosing certain information to the US ITC that AutoStore contended was relevant to the equitable estoppel defence.

HHJ Hacon, sitting as a Judge of the High Court, set aside the interim relief obtained ex parte. He found that the test in section 12(3) of the Human Rights Act did not apply because the right of freedom of expression was not engaged; but that the test of “high probability of success” should be applied by analogy with anti-suit injunction cases. He found that threshold not to be satisfied and in any event that the balance of irreparable harm fell clearly in favour of not granting relief; but gave permission to appeal.

The case is of particular interest in regard to both questions as to the applicable threshold test. It is hoped that the Court of Appeal may provide some guidance when its reasons are published.

The livestream of the hearing is available here.

Vernon Flynn QC acted for AutoStore on the Return Date and in the Appeal, instructed by Kirkland and Ellis.

Thomas Plewman QC acted for Ocado on the Return Date and in the Appeal, instructed by Powell Gilbert.