Merck KGaA v Merck Sharp & Dohme LLC & Ors

Neutral Citation Number: [2026] EWHC 1113 (Ch) Case No: HC-2013-000089 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 15/05/2026 Before : MASTER MCQUAIL – – – – – – – – – – – – – – – – – – – – – Between : MERCK KGaA Claimant – and – (1) MERCK SHARP & DOHME LLC & others Defendants – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – David Ivison (instructed by Bird & Bird LLP) for the Claimant Daniel Selmi (instructed by Baker McKenzie LLP) for the Defendants Hearing date: 29 April 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 2:00pm on 15 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. MASTER MCQUAIL : Introduction

1. The claimant (Merck) and the defendants (MSD) are respectively the German and US successors of a pharmacy business that started life in 17th century Germany. They are now separate concerns and competitors in the pharmaceutical sector.

2. This dispute over confidentiality and use of disclosed documents is the only outstanding aspect of long-running trade mark infringement / breach of contract litigation, which began in 2013. The substantive dispute concluded with a trial of the damages inquiry (the Trial) and the judgment of Bacon J ([2025] EWHC 2376 (Ch)) (the Damages Judgment) awarding Merck damages and interest of c. £6m. The award of damages was made on the basis of a notional licence fee with the valuation carried out on an economic benefits approach. Merck’s favoured comparables analysis and the evidence underpinning it was rejected by the Judge as premised on statistically meaningless material.

3. The litigation in this jurisdiction (but not parallel litigation elsewhere) is, this application aside, over. The Trial took place, mostly in public, and a fully public judgment was given and neither side has sought to appeal.

4. By application notice dated 21 November 2025 the claimant (Merck) seeks orders that: (i) documents listed in a schedule to the application (the Confidential Documents) and the information in them, shall not be used by MSD otherwise than for the purpose of the proceedings notwithstanding that they were included in the bundle for the Trial and/or referred to at a public hearing; (ii) MSD shall destroy all copies of the Confidential Documents in their control (save as may be necessary to comply with professional obligations); (iii) documents included in the Trial bundle, save the Confidential Documents, will no longer be subject to 31.22(1); and (iv) the parties are released from their obligations under the Confidentiality Club Agreement dated September 2014 binding MSD (as amended) (the Agreement), and a similar one binding Merck, in relation to documents included in the trial bundle and the information included therein, save for the Confidential Documents (but not from such obligations in respect of documents not included in that bundle).

5. There are 91 Confidential Documents listed in the schedule. A bundle of 20 sample documents collated for the hearing of the application comprised more than 1,900 pages.

6. A key feature of this case is the existence of the Agreement and the limits it places on MSD’s use of Merck’s documents. Merck wishes to protect the Confidential Documents and information contained therein, which it says are commercially sensitive, from use by MSD after the proceedings in this jurisdiction have ended. MSD says it should be able to use the Confidential Documents and information without any limit of time or purpose. The very fact this dispute has not been capable of amicable resolution is indicative that MSD considers there is information of value to it within the Confidential Documents. The question is whether MSD should be released from restrictions on collateral use of disclosed documents, in light of CPR 31.22, the Agreement, and the principle of open justice. The Nature of the Confidential Documents

7. The Confidential Documents are categorised by Merck in three broad categories: (i) Category A Documents – documents designated by Merck as confidential. These documents are in the following sub-categories: (a) Transfer pricing documents (including intra-group licence agreements) – documents numbered 1 – 33; (b) Internal Strategy Documents – documents numbered 34 – 59; (c) Board minutes – documents numbered 60 – 63; (d) Third-party licence agreements – documents numbered 64 – 68; (e) Private transcripts – documents numbered 69 – 71; (f) Web traffic documents (Google Analytics) – documents numbered 72 – 73 (two versions of the same document). (ii) Category B Documents: documents designated as confidential that Merck proposes to be non-confidential in versions redacted of names for privacy reasons. These are in the following categories: (a) Web traffic documents (non-Google Analytics) – documents numbered 74 – 75; (b) An internal email – document 76; (c) Third party licence agreements – documents 77 –

81. (iii) Category C Documents. These are Court documents which reproduce information contained in Category A or B Documents. Merck proposes that they be redacted to protect confidential information derived from the Category A and B Documents. These documents are in the following categories: (a) Expert reports: the expert reports of the economics experts (Mr Wynn for Merck, and Dr Stec for MSD), plus joint statements – documents 82 – 88; and (b) Skeletons: some of the opening and closing skeleton arguments- documents 89-91. Disclosure of the Documents and the Dispute over Confidentiality

8. All documents disclosed in this litigation were designated as confidential to avoid the need for an onerous confidentiality review before it was clear what role the documents would play. Accordingly, the disclosed documents were subject, at least initially, to: (i) CPR 31.22(1), so that the parties were obliged not to use any document (regardless of confidentiality) disclosed in the litigation for collateral purposes. That protection would have been lost if a document was read by or to the Court, or referred to, at a hearing held in public, unless an order was made pursuant to CPR 31.22(2); and (ii) the contractual obligations in the Agreement (and the one binding MSD) which obliged the parties to maintain the confidentiality of documents and not use them for any purpose other than the proceedings. Contractual protection would be lost only in limited circumstances set out in the Agreement.

9. In advance of the Trial the Court made non-specific pro tem orders pursuant to CPR 31.22(2) in relation to disclosed documents in the Trial bundle which had been read by or to the Court or referred to at a hearing held in public.

10. At the Trial counsel avoided reading aloud from documents identified as confidential in open court (reserving this for sessions in which the Court sat in camera).

11. The present position is that the claimant’s disclosed documents: (i) which have not been read by or to the Court, or referred to, at a hearing held in public, cannot, now or in future, be used for collateral purposes irrespective of whether they have been correctly designated as confidential (since none of CPR 31.22(1)(a) – (c) apply); (ii) which were read by or to the Court, or referred to, at a hearing held in public, are presently not available to MSD to use for collateral purposes because: (a) orders were made pursuant to CPR 31.22(2) at the trial and other hearings; and/or (b) MSD’s obligations under the Agreement did not cease upon a designated confidential document being deployed in a manner referred to in 31.22(1)(a).

12. Following the Trial and the Damages Judgment: (i) Merck reviewed its documents that were included in the trial bundle and reduced to 91 the list of documents over which it seeks to maintain confidentiality, i.e. the Confidential Documents; but (ii) MSD has decided it will not attempt to maintain confidentiality for any of its disclosed documents.

13. MSD now says it should be free to make use of the Confidential Documents for unspecified collateral purposes either: (i) because the Confidential Documents are not actually confidential; or (ii) any confidentiality should be overridden in the interests of open justice.

14. Merck’s position at the hearing of the application was that it was not necessary (or possible) for me to analyse the Confidential Documents one by one to determine confidentiality. MSD’s position was that I should briefly consider selected pages of the sample bundle of 20 of the Confidential Documents and, if satisfied that those pages were not confidential, should rule that the entire sample document had lost any protection. MSD hoped that rulings on the sample documents would enable the parties to narrow the issues between them on the remainder of the Confidential Documents.

15. The dispute over confidentiality was originally intended to be dealt with at a consequentials hearing before Bacon J on 17 October 2025, but there was insufficient time and the parties proposed that they would seek to reach agreement with permission to apply if necessary. That proposal was approved by Bacon J and incorporated into the order made on that occasion.

16. The Judge did, however, make some (non-binding) observations: “Can I flag up at this stage, I do not know if it will help with any narrowing of the issues: I welcome the suggestion that you look at this on a more targeted basis. I think that it ought to be possible to narrow the issues in dispute between the parties. I obviously cannot look at all of the 93 documents. What I have done, obviously, is to read the witness evidence, including Mr. Brownlow's evidence which helpfully goes through all of the categories. That is the only place where we see a consideration of the confidentiality category-by-category of the documents…. “It struck me that there may well be differences between the confidentiality of different categories of the documents. At first blush, and without having further submissions, my provisional view was that something like transfer pricing documentation and internal strategy documents, including board minutes, are the kinds of documents that are more likely to remain commercially sensitive than, for example, documents relating to web traffic, particularly if that was fairly historic. The other category, I did not look at the internal e-mail. I think there is only one internal e-mail in dispute. I am not sure from the description of that by Mr. Brownlow, whether that really should be maintained as confidential. But, those categories of documents seem to me more questionable than documents such as internal strategy documents, tax documents and also third party licensing agreements.”

17. The Judge made no observations about the Private Transcripts or the Category B or Category C Documents. Merck’s Position

18. Merck submits that there is a simple answer to the entire application, which is provided by the Agreement, and the Court can make the order sought by Merck without needing to consider questions of open justice at all.

19. Merck submits that a non-party may at any time apply to the Court to see a complete and unredacted version of any one of the Confidential Documents, under CPR 5.4C(2) (if applicable), or the Court’s inherent jurisdiction, on open justice grounds, as the Supreme Court’s decision in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 makes clear. The order sought by Merck does not therefore prejudice any right of the general public to access the Confidential Documents.

20. On the other hand Merck says that MSD entered into the Agreement and contracted out of any right to make such an application in reliance on principles of open justice. It promised not to use the Confidential Documents for purposes other than those of the proceedings. MSD could have made its own application under CPR 31.22(1)(b) for positive permission to make collateral use of the Confidential Documents (or some of them), and to be released (to some extent) from its contractual obligations.

21. If the Agreement argument is not a knock-out blow on this application Merck says: (i) MSD needs to identify those Confidential Documents which were deployed within 31.22(1)(a); (ii) in relation to such documents, Merck needs to show that there is prima facie justification for preventing MSD from making collateral use of the Confidential Documents, which it would do by showing that it enjoys legal rights which are enforceable to restrict the use of the Confidential Documents; and (iii) the onus should then shift to MSD to satisfy the Court that open justice is served by an order lifting the protection of CPR 31.22(1) and the Agreement.

22. Merck says this approach is justified because if MSD is seeking to rely on an open justice argument it should be treated in the same way as any other member of the public interested in obtaining access to the documents who would need to “show a good reason why [their application] will advance the open justice principle, that there are no countervailing principles …, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate”, see [40] of Picken J’s judgment in Dring v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB).

23. On the other hand if MSD seeks to use the documents because it has a particular use it would like to make of them, then it ought to have made an application under CPR 31.22(1)(b), showing “special circumstances” constituting a “cogent reason” to justify this, see [66] of Tchenguiz v SFO [2014] EWCA Civ 1409.

24. Merck submits that its suggested approach is also justified by policy. Parties to litigation who have received confidential materials, subject to CPR 31.22(1) and/or a contractual agreement should not occupy their counterparty’s and the Court’s resources by requiring the counterparty to show why it is not in the interests of justice for disclosure documents and confidential information to be released from confidentiality obligations, rather than focus on a particular document and the reasons why it is needed by the counterparty or in furtherance of open justice.

25. If Merck does enjoy legal rights to restrict MSD’s use of the Confidential Documents (or some of them), MSD is effectively asking the Court to restrict those rights. Merck does not dispute that the Court has the power to override private legal rights if this is necessary to achieve open justice, but submits there must be a justification.

26. Lady Hale explained in Dring (UKSC): “[2] … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. … [42] … The principal purposes of the open justice principle are two-fold … The first is to enable public scrutiny of the way in which courts decide cases … [43]… the second …. is to enable the public to understand how the justice system works and why decisions are taken…”

27. Merck submits that neither of these purposes is sacrosanct. Trials can and do take place in private and documents referred to may never be made publicly accessible. The publicly available version of some judgments may be redacted because explaining the Court’s reasoning necessitates discussion of confidential information, see for example JC Bamford v Manitou [2023] EWCA Civ 840 and InterDigital v Optis [2025] EWCA Civ 1263.

28. The law is set out in JC Bamford [2023] and is briefly summarised at [110]: “… open justice must only give way to the protection of trade secrets when, and to the extent that, this is necessary. Where it is necessary to protect trade secrets, however, open justice must give way to a still greater principle, which is justice itself. The court is not engaged in an exercise of trying to balance incommensurables. The effect of this can be seen in the trade secrets cases like Vestergaard v Bestnet and Kerry v Bakkavor: not only must the court sit in private to some extent, but also part of the court's judgment must be redacted (or kept confidential in some other way). This may make it impossible for the public to understand the details of the court's reasoning, but that is the price that must be paid for proper protection of trade secrets.” And as is clear from [111]: “Even lower grade confidential information is entitled to protection where its publication is not necessary for open justice.”

29. As the JC Bamford and Interdigital cases make clear the Courts are careful to scrutinise very carefully any assertion that confidentiality concerns should result in a public judgment which is partially redacted, since the availability of fully public judgments is the paradigm embodiment of the principle of open justice.

30. Merck submits that the potential availability to the public of documents such as expert reports, witness statements and skeleton arguments is less important than access to the judgment itself, but such access can be obtained by an application made under CPR 5.4C(2) (if the document has been filed at court) or the Court’s inherent jurisdiction (if it has not).

31. Merck further submits that the disclosed documents which underlie the expert reports, witness statements and skeleton arguments which in turn underlie the judgment are at one further remove from the process of deciding a case and why the decision was reached. It is therefore unsurprising that there is no CPR-based route for a non-party to obtain such documents and that it is routine for a Court to approve after trial, without significant argument, an order pursuant to CPR 31.22(2) to preserve indefinitely the confidentiality of confidential documents even if deployed at trial.

32. Merck points also to policy consideration. If parties, or prospective parties, to litigation before the English courts anticipate that confidential documents of which they must give disclosure are at risk of being used for collateral purposes by the counterparty, that is liable: (i) to be a deterrent to parties’ willingness to litigate before the English courts (ii) to make the process of disclosure more difficult and costly and less productive, so reducing the quality of evidence available to the Court, because litigants will endeavour to avoid or limit the disclosure of documents which they consider to be confidential; and (iii) to send out the message that they must expect to have to fight document-by-document, line-by-line – at substantial expense – to maintain the confidentiality of disclosed documents after the proceedings are otherwise over and judgment has been given.

33. So far as MSD has suggested that it may wish to deploy the Confidential Documents in litigation in other jurisdictions, Merck says that cannot amount to an open justice purpose so far as this jurisdiction is concerned and MSD has not explained how Courts in other jurisdictions will not be able to reach just results unless this Court permits MSD to deploy the Confidential Documents.

34. Logically possible use by MSD of the Confidential Documents in foreign proceedings can only make any difference to the outcome of this application if the Court concludes the Confidential Documents are entitled to legal protection and the open justice principle does not otherwise require MSD to be able to freely use the Confidential Documents. Accordingly MSD should have sought permission in an application under CPR 31.22(1)(b) to use the Confidential Documents for the collateral purpose of deployment in foreign litigation, but has not done so.

35. Merck points out that there is a statutory procedure by which evidence can be obtained in this jurisdiction for use in litigation in foreign jurisdictions under the Evidence (Proceedings in Other Jurisdictions) Act 1975. JC Bamford Excavators Ltd v Manitou UK Limited & anr [2019] EWHC 3071 (Pat) at [64] – [65] explains that the existence of this statutory mechanism implicitly precludes the use of applications under CPR 31.22(1)(b) as a means to obtain such evidence. MSD’s Submissions

36. MSD says that it has argued consistently that Merck’s position is contrary to the principle of open justice and needs to be justified and that there is no reason to depart from the ordinary position under CPR 31.22(1), that materials read to or by the Court or referred to at the Trial cease to be subject to the collateral use restriction. The Confidential Documents are important for a proper understanding of the Judgment and to the extent that Merck wishes there to be a final order under CPR 31.22(2), the burden is on Merck to justify it with precision and, absent such justification, the documents are not properly to be regarded as confidential.

37. MSD submits that the leading case on final orders under rule 31.22(2) remains Lilly Icos Ltd v Pfizer Ltd (No 2) [2002] EWCA Civ 2, [2002] 1 WLR 2253 at [25]: "(i) The court should start from the principle that very good reasons are required for departing from the normal rule of publicity. … 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 [European] Convention [on Human Rights]. (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 … 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… (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.”

38. MSD emphasised the importance of the comment in Lilly Icos as to the need for a party asserting confidentiality to advance specific reasons why the party would be damaged by the publication of the document.

39. MSD also submits that the following principles are relevant: (i) the existence of a prior confidentiality club does not alter the analysis or the burden of proof: see Cockerill J’s comprehensive examination of the relevant legal principles in Cavallari v Mercedez-Benz & ors. [2024] EWHC 190 (KB) at [20] to [43], which also confirms that a claim to confidentiality needs to be focussed with precision by reference to the precise contents of documents (at [28]); (ii) material which is commercially sensitive to the extent that it is confidential may cease to be confidential because the value of the information is lost by the passage of time and progress – a five-year rule of thumb reflects that approach (Cavallari at [41]-[42]). In her conclusions, Cockerill J reiterated that “if confidentiality is to be asserted it must be justified” (at [82]), and that “Information within documents is prima facie not confidential – the designation must be justified” (at [85]); (iii) the Court is “duty-bound to consider open justice” and “is at its most vigilant when the parties are for their part agreed that information should be kept from the public…parties cannot contract out of their open justice obligations” (The Badger Trust & Anor, R (On the Application Of) v Natural England [2025] EWHC 2761 (Admin)).

40. MSD drew attention also to the PD51ZH – “Access to Public Domain Documents” pilot and pointed out that the documents to which it applies include witness statements and expert reports (including annexes and exhibits).

41. Accordingly MSD submits: (i) Merck’s position which represents a departure from the open justice principle needs to be justified to the satisfaction of the Court, with precision by reference to the contents of particular documents. The Court should therefore automatically dismiss Merck’s application insofar as what is sought is an order in respect of all the Confidential Documents without a proper assessment of each; (ii) There is no principled reason to depart from the ordinary position under CPR 31.22. The materials read to or by the Court or referred to at the trial of the inquiry are important for a proper understanding of the Judgment. The Court’s consideration and assessment of, in particular, the expert evidence, by reference to the criticisms of one expert’s evidence by the other’s, call for their reports to be accessible to make the judgment and reasoning comprehensible; (iii) MSD are not seeking to maintain confidentiality in any of their materials placed before the Court; (iv) The document-by-document objections to the Sample Documents demonstrate that the Confidential Documents are old, mostly dating from 2010 to 2019, and outside the five-year rule of thumb and many relate to Merck’s rebranding in the period 2014-2016 which was the subject of extensive cross-examination and submissions at trial. Those documents are necessary for the public’s proper understanding of the judgment; (v) Only a fraction of the documents were originally (i.e. before the litigation) marked as confidential. MSD have objected to the litigation confidential markings throughout; (vi) Merck has also alleged in Mr Brownlow’s statement and correspondence that some of the documents are “the subject of confidentiality obligations” but has provided no evidence of these obligations or indicated that any third party has objected to the documents being disclosed; and (vii) Merck is not appealing the damages award. Merck has commenced proceedings in a number of other jurisdictions and has sought to rely on outcomes in this litigation in foreign claims raising similar issues, including in Ireland, Hong Kong, Malaysia, South Korea and Taiwan. If Merck pursues damages claims in other jurisdictions, both parties are likely to seek to rely on the final Judgment on damages in this action. It is important that foreign courts are able to see not only the outcome reached, but the materials before this Court (including the expert evidence) and the reasoning by which it concluded how much Merck’s claim was worth.

42. MSD objects to a blanket ban on its use of essentially all underlying materials in its damages claim, without any precise, reasoned justification. Merck has failed to satisfy the burden on it to establish confidentiality and the application should be refused. MSD does not rule out the possibility of genuinely confidential material being protected by redactions. Discussion and Conclusions

43. I have considered all the submissions of the parties on the law relating to the open justice principle and its relationship with the law of confidentiality and the application of the law to the facts of the case.

44. The central issue is whether, and if so to what extent, the Court should permit MSD to use documents disclosed in these proceedings for collateral purposes, notwithstanding (i) CPR 31.22 and (ii) the contractual confidentiality regime agreed between the parties.

45. As the authorities make plain the starting point as a matter of law is the fundamental principle of open justice. In the normal course, as the authorities also make plain, it will be for the party making a claim to confidentiality to justify overriding that fundamental principle.

46. While the open justice principle provides the starting point, its application must be assessed in the context of the contractual regime agreed between the parties. Here the Agreement imposes on MSD a contractual obligation not to make collateral use of disclosed documents designated by Merck as confidential. That contractual requirement is not abrogated by CPR 31.22(1)(a) deployment (unlike in Cavallari and Lilly Icos). MSD has also contracted to accept Merck’s designations of confidentiality with no contractual mechanism to challenge assertions of confidentiality (compare Cavallari).

47. In parallel with the Agreement the Court, with the concurrence of the parties (albeit MSD says reluctant concurrence on its part), has made pro tem CPR 31.22(2) orders in order to facilitate the litigation being conducted in a proportionate and cost efficient manner.

48. The key open justice principles are that the public are able to understand the way in which the Court has decided the case and to enable the public to understand how the system of justice works and why the Court made its decisions. The granular details of a particular dispute are not of general relevance or public importance.

49. The trial was conducted largely in public and the Damages Judgment is fully public and the principles on which it proceeded and the reasoning for its conclusions can, in my judgment, be understood without access to any underlying confidential internal documents, or unredacted expert reports or skeleton arguments. Just because the Judge was critical of Merck’s expert, does not mean confidential material is necessary to understand that criticism. Merck’s position is that the skeleton arguments and experts reports, will be available to MSD to use for collateral purposes, subject to minor redaction of confidential material.

50. Nothing in the form of order that Merck asks me to make would prevent a member of the public who wishes to obtain documents in order to scrutinise or understand the judgment from making an application to the Court on the basis of the open justice principles. The Dring decisions explain the route by which such a person may do so and on what principles an entitlement to see and use the documents would be established. I note that no member of the public has made any such application to date, despite interest in the decision evidenced by articles written by legal commentators.

51. I also note that even if I were to refuse to make any order along the lines sought by Merck any member of the public wishing to have access to the documents would either have to request the documents from MSD or Merck (who would not be obliged to accede to the request) or make an application to Court.

52. The fact that MSD is content for its confidential material to be freely available is of peripheral relevance. It seems inherently more likely that the claimant in a damages inquiry will need to disclose confidential material than a defendant will.

53. The fact that little of the material was originally marked as confidential also has little bearing on any decision about confidentiality now. It is the content of the document not its marking as confidential that determines whether it or information in it is confidential.

54. It is vital that the approach to be adopted now, after the Trial, is consistent with the overriding objective and that a proportionate and cost efficient approach continues without excessive use of the parties’ or the Court’s resources To allow extended and expensive post-trial satellite litigation about confidentiality cannot be consistent with the overriding objective.

55. The Access to Public Domain Documents pilot has no application to this case which began in 2013 and where the parties agreed the treatment of disclosed documents in 2014 and the whole course of the action, bar this application, was concluded before it came into operation in courts other than the Chancery Division. If this case had been subject to the pilot the manner in which disclosure occurred and disclosed documents were treated is likely to have happened in a radically different way.

56. Here, MSD contractually bound itself not to use the Confidential Documents for any collateral purpose, whether they are in fact confidential or not and without any release of its contractual obligation if the Confidential Documents were read or referred to in court. MSD has had the benefit of access to the Confidential Documents for the purpose of the proceedings and a fair Trial of the claims made against it. MSD is not itself complaining that it is unable to understand the Damages Judgment.

57. Mr Selmi took me to various of the sample documents and demonstrated that certain pages of them could not possibly be confidential as they contained, for example, images of logos in the public domain or scientific stock pictures. He pointed out that many of the documents are more than 5 years old and that it was questionable whether any quality of confidence they once held remained. In the case of each of the sample documents he asked me to rule that it was not confidential. If he were to succeed in relation to all the sample documents and in due course (by agreement or further court rulings) the entirety of the Confidential Documents, his position was that the Court should then order that MSD be released from its obligations under the Agreement.

58. It was not and never could have been possible for the parties to have engaged in a line by line analysis of the confidential (or not) nature of all parts of each of the 91 Confidential Documents – or even the 20 samples – in a 4 hour hearing. Even the Trial Judge with close familiarity with the documents would have been hard-pressed to conduct that exercise in such a time frame.

59. I have noted the provisional views of the Trial Judge who had that familiarity with the documents, that many of the categories of the Confidential Documents were likely to be commercially sensitive, although the email and the web traffic documents possibly less so. My own review of the descriptions of the documents leads me to the same provisional conclusion as to at least some of the content of the Category A and B Documents, that it is likely to have at least at some stage been confidential, and that confidentiality would not necessarily be lost at an arbitrary time after creation. It seems to me also that the Private Transcripts and the Court Documents in which there are references to the Confidential Documents and material derived from the Confidential Documents will contain commercially sensitive material.

60. In light of the Trial Judge’s provisional views and my own provisional conclusions I consider that Merck is entitled for me to start from a working assumption that the Category A and Category B Documents contain at least some material capable of attracting protection for their quality of confidentiality and that the Category B and the Category C Documents may need to be redacted to protect their confidential quality if MSD is to be free to use those documents for purposes other than the proceedings.

61. Here the Trial has taken place and an open judgment has been delivered. In my judgment a party contractually obliged not to challenge the asserted confidentiality of the litigation counterparty’s documents and not to use the disclosed documents for purposes other than the proceedings, such as MSD, should bear the practical and evidential burden of establishing either that there is an open justice reason why a particular document or documents needs to be made available or that there are “special circumstances” constituting a “good reason” why it should be released from its contractual obligations and be free to use that document or documents for an identified proposed collateral use. Merck would then be in a position to make a targeted argument that the document (s) contained confidential material. The Court would then be in a position to rule on the question of confidentiality, including its potential loss by the passage of time, only in relation to documents for which the purpose of future use was identified.

62. In light of my conclusion on MSD’s contractual position, I do not propose to accept Mr Selmi’s invitation to rule on confidentiality in the manner he invites me to do and then order that MSD is released from its obligations under the Agreement. The approach he suggests is superficial and risks damage to Merck by allowing use by MSD of the Confidential Documents and confidential material in them, some of which I assume to be confidential.

63. In the circumstances of this case where there is a very substantial body of Confidential Documents, which I am satisfied from MSD’s eagerness to use them, the trial Judge’s well informed provisional view and my own provisional view contain at least some valuable confidential information, a proportionate approach requires MSD to make a targeted approach to overriding its contractual obligations, by reference to specific documents and specified future use. The usual open‑justice starting point is in my judgment displaced not in principle, but because of MSD’s contractual position and the broad brush nature of its opposition to Merck’s application and so long as third party members of the public are not prevented from access to documents where appropriate.

64. In particular, if MSD wishes to use the material in foreign proceedings, which use would not engage English open justice principles, the appropriate mechanism would be an application under the Evidence (Proceedings in Other Jurisdictions) Act 1975. If MSD can persuade the Court that material among the Confidential Documents is necessary for Courts in other jurisdictions to achieve just results and that that is a sufficient reason to be permitted to allow MSD to so deploy the materials, that is not an open justice concern of this Court.

65. Accordingly I propose to make an order along the lines sought by Merck but making clear that MSD may in future, but with some limit of time or purpose which I would ask the parties to discuss, make an application to use one or more of the Confidential Documents if it can be justified by reference to a special circumstance constituting a good reason which would include identifying a particular use for MSD’s purposes.