This judgment concerns matters of confidentiality arising out the trial of a damages inquiry between Merck KGaA (“Merck”) and Merck Sharp & Dohme LLC (“MSD”). The parties have been involved in UK litigation since 2014 over MSD’s use of the MERCK name in ways not permitted under an agreement made between the two businesses several decades ago. In 2025, Bacon J awarded Merck damages and interest of c. £6m: see [2025] EWHC 2376 (Ch).
The parties had, at an early stage in the litigation, entered into a confidentiality club agreement (“the Confidentiality Club”). Various documents disclosed in the course of the damages inquiry were designated as “confidential” pursuant to the Confidentiality Club. Pro tem orders pursuant to CPR 31.22(2) had also been made in respect of these documents at interim hearings and at the trial. Merck sought an order from the Court preventing MSD from making use of 91 of these documents (“the Confidential Documents”) for collateral purposes, relying on the terms of the Confidentiality Club and CPR 31.22(2).
MSD argued that the Confidential Documents were in fact not confidential, and – in any event – the open justice principle precluded the making of the order sought by Merck. MSD had not explained which of the Confidential Documents it was interested in or what it proposed to do with them, although its evidence did refer to the possibility of using at least some of the documents in litigation which is ongoing between the parties in other jurisdictions.
Merck argued that the advanced its application on the bases that: (1) the Confidentiality Club was a contractual agreement which prevented any collateral use of documents designated as “confidential” (and, whilst it provided that its terms could be varied by Court order, no application for such an order had been made by MSD), such that MSD was bound not to use them regardless of their confidentiality; (2) in any event, provided the Court was satisfied that the Confidential Documents were likely to contain at least some confidential information (by reference to the Trade Secrets (Enforcement, etc.) Regulations 2018 and the general law of confidence)), the onus was on MSD to apply for and justify an order permitting it to make use of identified documents (and, since no such application had been made, the Court should accede to Merck’s application).
Merck’s position was that the open justice principle was not engaged, since: (1) MSD was not entitled (having entered into the Confidentiality Club) to rely on it; and (2) the order Merck was seeking against MSD would not preclude, or prejudice the outcome of, an application by a third party under CPR 5.4C(2) and/or the Court’s inherent jurisdiction in respect of documents referred to during the trial.
Master McQuail broadly agreed with Merck’s position, finding that the terms of the Confidentiality Club precluded collateral use of the Confidential Documents and that MSD had not justified a relaxation of its terms, the burden being on it to do so. Master McQuail indicated, however, that she was willing to permit MSD liberty to make a future application for permission to make collateral use of the Confidential Documents provided that it was justified by reference to specific documents and specified uses to which it was proposed to put those documents.
David Ivison appeared for Merck, instructed by Bird & Bird LLP.
[2026] EWHC 1113 (Ch)
