Nador Cott Protection SAS v Asda Stores Limited & Anor [2025] EWHC 2896 (Pat)

[2025] EWHC 2896 (Pat)Case No HP-2025-000001IN THE HIGH COURT OF JUSTICEBUSINESS & PROPERTY COURTS OF ENGLAND & WALESINTELLECTUAL PROPERTY (ChD)PATENTS COURTSHORTER TRIAL SCHEMEVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 6 November 2025
Before
THE HON MR JUSTICE MELLOR
Between
NADOR COTT PROTECTION S.A.S.ClaimantASDA STORES LIMITEDDefendantsINTERNATIONAL PROCUREMENT AND LOGISTICS LIMITEDDefendant
Andrew Lykiardopoulos KC and Maxwell Keay (instructed by Powell Gilbert LLP) for ClaimantAnna Edwards-Stuart KC and Miruna Bercariu (instructed by Appleyard Lees LLP) for DefendantsHearing Hearing date: 31 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 6 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HON MR JUSTICE MELLOR

Introduction

[1]This is my judgment on issues which arose at the hearing of the PTR in these Shorter Trial Scheme proceedings. Much of the relevant background was set out in my CMC Judgment [2025] EWHC 941 (Pat) to which the reader is referred. What I will set out in this Judgment is what is necessary to understand the issues which arose at this PTR.[2]The Claimant (NCP) sues for infringement of United Kingdom Plant Breeders’ Right number 28016 (the Nadorcott PBR), which concerns the Nadorcott variety of mandarin orange. The alleged infringement is Tang Gold, sold by Asda in the United Kingdom.[3]The trial is listed to take place in a 5 day window from 24 November 2025, with a time estimate of 3 – 4 days.[4]The issues which arose at the PTR, in summary, concerned: i) Whether, on the current pleadings, it was open to Asda to run the argument at trial that the W. Murcott and Nadorcott varieties were factually distinct. Having heard impassioned argument, I stated my clear conclusion that it was not, for reasons to be given later. ii) The status of Asda’s Amended Civil Evidence Act Notice dated 9 October 2025.

Events since the CMC

[5]Until recently, the action was proceeding to trial in accordance with the directions in my CMC Order dated 12 May 2025 and it appeared that the parties were complying with their obligation when engaged in a Shorter Trial Scheme case, as set out in PD57AB, para 1.5:
‘1.5 Where a case is agreed or ordered to be suitable for the Shorter Trials Scheme, the court expects the parties and their representatives to cooperate with, and assist, the court in ensuring the proceeding is conducted in accordance with the Scheme so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.’
[6]Thus, disclosure was given, witness statements and CEA Notices were exchanged on 10 September 2025, with expert reports exchanged on 2 October 2025. Furthermore, the parties agreed an Agreed Statement of Facts and an Agreed Chronology of Foreign Proceedings. Despite those agreed statements, it is clear that matters were beginning to go awry.[7]On 24 September 2025, Asda served an expert report from Mr Rodrigo Latado, a Scientific Researcher at the Agronomic Institute of Sao Paulo State. Mr Latado says he was originally instructed to give evidence on whether the two agreed distinguishing characteristics between Nadorcott and Tang Gold are “essential characteristics”. On 23 September 2025, the day before his report was signed, Mr Latado says he received further instructions to address (inter alia) the question of whether he can determine that W. Murcott and Nadorcott are the same variety (§3.4(a)). On this point, Mr Latado says as follows at §12.1 of his report:
“12.1. In my opinion, two varieties with different names (in this case, Nadorcott and W Murcott) must be confirmed as being the same variety by using more modern methods involving DNA (molecular markers or complete sequencing) before I can provide a view on whether they are the same variety. Characteristics of W. Murcott and Nadorcott identified in different testing conditions cannot be reliably compared.”
[8]NCP take the view that this evidence is irrelevant to any issue that arises on the pleadings, so it was not necessary for NCP formally to object to the evidence or seek to strike it out. In addition, Mr Latado is in effect saying he cannot provide a view on the issue in any event. However, on the basis of this evidence and these last-minute instructions NCP say they did cause them to wonder what was going on.

Asda’s Amended CEA Notice

[9]NCP objected to Asda’s original CEA Notice on the basis that it listed an extensive number of documents which exceeded 10,000 pages of material. Asda agreed to amend it and served their Amended CEA Notice on 9 October 2025. I shall have to discuss the Amended CEA Notice in further detail below, but, by my calculation, even the Amended CEA Notice relies on over 2,200 pages of material which were contained in the bundles for this PTR. All these documents are drawn from the disclosure given by NCP from other related proceedings in South Africa and Spain concerning the Nadorcott variety. The volume and breadth of the documents are a reflection of how long the disputes have been ongoing, without resolution.[10]NCP’s review of those materials led them to raise three objections: i) First, because it appeared that Asda were seeking to advance a case that W Murcott and Nadorcott are distinct varieties, rather than the same variety re-named, NCP sought a ruling that this case was not open to Asda on the current pleadings. I will call this ‘the Pleading Issue’. ii) Second, because those materials included a number of expert reports served in foreign proceedings, for which no permission had been given, NCP sought a ruling that Asda could not rely on those reports – ‘the Expert Reports Issue’ iii) Third, (and separately from the second point) because some of those expert reports reported the results of testing done at various times and in various countries abroad. NCP’s point was that these constitute experiments which Asda could not rely upon because Asda had not complied with the directions in my CMC Order on experiments – ‘the Experiments Issue’.[11]As the result of my pre-reading, I identified a fourth point which I raised at the hearing, concerned with the Amended CEA Notice as a whole – ‘the CEA Notice Issue’.

The Pleading Issue

[12]As will be seen, the Pleading Issue resolves to a short point – whether Asda raised an issue that W. Murcott and Nadorcott were ‘factually distinct varieties’. I point out that to raise such an issue properly, Asda would have had to have set out the differences which supported a conclusion that those varieties were ‘factually distinct’.[13]To explain my conclusion on this point requires reference not just to the existing pleadings but also to the Agreed Statement of Facts. I can do this by reference to the arguments each side put forward.

NCP’s arguments

[14]NCP’s pleaded case in its Particulars of Infringement is that: i) Nadorcott was discovered and developed in Morocco by Dr El Bachir Nadori (§2). ii) Tang Gold was derived by irradiating Nadorcott budwood that was sent by Dr Nadori to Dr Bitters of the University of California in 1985 (§3). iii) Tang Gold is an essentially derived variety of Nadorcott within the meaning of section 7(3) of the Act (§§3-6).[15]In its Amended Defence, Asda pleads the following facts regarding the origin of Tang Gold: i) INRA 21 W, INRA W, W. Murcott, and Murcott SAMSA are all names for the same variety (§9(b)). ii) Dr Nadori supplied Prof Bitters of the University of California with W. Murcott budwood in 1985 (§9(d)-(f)). Prof Bitters subsequently irradiated W. Murcott budwood to produce Tang Gold (§§9(j), (m)-(n)). iii) INRA 21 W / W. Murcott / Murcott SAMSA was renamed “Afourer” by Dr Nadori in 1988 (§9(g)). iv) From 1989 Dr Nadori conducted experiments on Afourer trees by covering them with nets to prevent pollination (§9(h)). At some point after 1988 but before 1995, Afourer was renamed “Nadorcott” by Dr Nadori (§9(k)).[16]On that basis, NCP submitted it was clear that Asda’s pleaded position is that W. Murcott, Afourer and Nadorcott are different names for the same variety. I agree that there is no suggestion, on Asda's pleaded case, that the development acts undertaken on W. Murcott after 1985 would be sufficient to create a new factually distinct variety. What Asda reports in its pleadings is that Dr Nadori undertook further assessment of the variety, including assessment by covering the trees with nets as referred to by Asda. NCP suggest that was done in the context of the process of propagation and evaluation of the variety and, overall, the variety remained unchanged.[17]NCP also point out that the acceptance that W. Murcott and Nadorcott are the same variety that was renamed is also Asda’s positive case in its Grounds of Invalidity at the Office, where Asda again pleads that W. Murcott and Nadorcott are the same variety that was renamed (Grounds of Invalidity at 4(3)-4(4) and 4(8)).[18]As will be seen, the parties agreed that paragraphs 9A and 9C(c) of the Amended Defence are the key paragraphs (paragraph 9D being a general denial of paragraphs 2-5 of the Particulars of Infringement in so far as inconsistent with paragraph 9C). At 9A of the Amended Defence Asda plead that: “it is denied that the Tang Gold variety is derived from the Nadorcott variety. The Tang Gold variety is derived from the W. Murcott variety, following the irradiation of W. Murcott budwood supplied to the University of California in 1985, some two years prior to Dr Nadori's observation that some of the INRA 21 W trees planted by SASMA produced some green-yellowish fruits had no seeds”.[19]At paragraph 9C(c) Asda pleads further that: “Insofar as [the] Nadorcott variety is a distinct variety discovered and developed by Mr Nadori, any development took place by Mr Nadori in and/or after 1988”.[20]As NCP submitted, this is the “temporal” argument that Tang Gold cannot derive from Nadorcott because Asda contends that some of the “development” that, according to Asda, made Nadorcott protectable under the PBR took place later (Hopewell 3 §§17-19). The development referenced by Asda is part of the assessment of the variety conducted by Dr Nadori by covering the trees with nets to prevent pollination.[21]In its Reply at §6, NCP pleaded that there is no factual dispute that “INRA W 21”, “W Murcott”, “Murcott SASMA”, “Afourer” and “Nadorcott” are all alternative names for a single variety. That was pleaded back in May. NCP submitted that Asda has never sought to gainsay or challenge this paragraph (Hopewell 3 §22) and that if Asda considered that this paragraph was wrong and that NCP was under a misapprehension as to the issues in dispute, then plainly it was incumbent on Asda to draw this to the attention of NCP.[22]NCP also drew attention to my CMC judgment of 16 April 2025 ([2025] EWHC 941 (Pat)), where I observed in several places that there did not appear to be any real factual dispute between the parties and that the disputes were about legal consequences: see [43], [51(i)] and [86]. NCP say that it is clear from this that I did not understand Asda to be running a positive case that W. Murcott and Nadorcott are factually distinct varieties.

The Agreed Statement of Facts

[23]Given their perception that there was an absence of any real factual dispute between the parties, NCP proposed that the parties agree a Statement of Facts for trial, rather than incur the cost of preparing witness statements on undisputed facts. This resulted in the Agreed Statement which was finalised on 10 September 2025, albeit that NCP suggest that the process of agreeing it took longer than necessary due to Asda’s delay and changes of position.[24]For present purposes, the relevant paragraphs of the Agreed Statement are as follows: “6. In 1985, Dr Nadori supplied Prof Bitters with budwood from the W. Murcott variety. … 9. At some point after 1988 but before 22 August 1995, Dr Nadori re-named the “W Murcott/Afourer” trees as “Nadorcott”. … 14. The Claimant’s position is that the characteristics that distinguish Tang Gold from Nadorcott are the following:(i) Nadorcott produces viable pollen which, under conditions of open cross-pollination, will generate seeds in the fruit of other compatible citrus varieties whereas the pollen of Tang Gold is essentially non-viable (CPVO Characteristic 18: Anther: viable pollen)2.(ii) The fruits of Nadorcott, when cross-pollinised by pollen of compatible citrus varieties, are capable of forming seeds, whereas the fruits of Tang Gold proved to be essentially seedless when manual cross-pollination was tested under the CPVO protocol in the official technical examination conducted during the consideration of the application for registration of Tang Gold (CPVO Characteristic 68: Fruit: number of seeds (controlled manual cross-pollination)3. 15. The Defendants accept that the differences set out at paragraph 14 above distinguish the two varieties and they do not intend to rely on further distinguishing characteristics. 16. The Claimant’s position is that the distinguishing characteristics set out at paragraph 14 above resulted from the irradiation of budwood by the University of California, Riverside, as further particularised at paragraphs 11 –13 above 17. The Defendants do not take issue that the differences set out at paragraph 14 above were the result of the irradiation by the University of California, Riverside of the budwood provided by Dr Nadori.” (i) Nadorcott produces viable pollen which, under conditions of open cross-pollination, will generate seeds in the fruit of other compatible citrus varieties whereas the pollen of Tang Gold is essentially non-viable (CPVO Characteristic 18: Anther: viable pollen)2. (ii) The fruits of Nadorcott, when cross-pollinised by pollen of compatible citrus varieties, are capable of forming seeds, whereas the fruits of Tang Gold proved to be essentially seedless when manual cross-pollination was tested under the CPVO protocol in the official technical examination conducted during the consideration of the application for registration of Tang Gold (CPVO Characteristic 68: Fruit: number of seeds (controlled manual cross-pollination)3.[25]Thus, Asda agree at §9 that W. Murcott was re-named Nadorcott. NCP say this necessarily implies they are the same variety and is inconsistent with them being factually distinct varieties.[26]Footnote 1 to the Agreed Statement of Facts for Trial states:
“References in this document to the names “W Murcott” and “Nadorcott” are without prejudice to the parties’ positions in relation to validity and development, and in particular to paragraph 9C (c) of the Amended Defence.”
[27]This footnote relates to Asda’s argument (addressed above) that the acts of development of Nadorcott took place after the delivery of budwood to Prof. Bitters in 1985. I agree that it cannot sensibly be read as negating or qualifying the clear statement at §9 that W. Murcott was re-named Nadorcott.[28]By §§14-17 of the Agreed Statement of Facts Asda limits itself to relying on only two distinguishing characteristics between Nadorcott and Tang Gold and it accepts that these two differences were the result of the irradiation of the budwood supplied by Dr Nadori.[29]Again, this all points to the fact that the parties were agreed that W. Murcott and Nadorcott are the same variety (re-named). That is then entirely consistent with Asda accepting that the only differences on which it will rely between “W.Murcott/Nadorcott” and Tang Gold are those that arose from the irradiation of “W. Murcott/Nadorcott”. That makes sense if W. Murcott and Nadorcott are the same variety. It makes no sense if, according to Asda, the two are now said to be factually distinct varieties.

Asda’s argument and my conclusions

[30]Having set out the relevant parts of the pleading and Agreed Statement already, I can summarise Asda’s argument more succinctly.[31]First, it was very clear from Asda’s Skeleton Argument for the PTR that they contended they were running and were able to run the argument ‘that W Murcott and Nadorcott are factually distinct varieties’.[32]Second, it was also clear from Asda’s Skeleton that they contended that this argument was open to them on the basis of their pleading that Tang Gold was not derived from Nadorcott but was derived from W Murcott (see 9A, 9C and 9D) because, and I quote, ‘Implicit in this plea is that Nadorcott is not the same as W Murcott’.[33]When I asked Counsel for Asda where I would find in their pleading a list of the differences which would justify the conclusion that the two varieties were ‘factually distinct’, Counsel accepted that she would need to supplement the pleading with such a list.[34]This, in my judgment, would not be a mere matter of supplementation. It would introduce the entirely new case that the two varieties were ‘factually distinct’.[35]At [20] above, I agreed that paragraph 9C(c) raised the ‘temporal argument’ but that is, in my view, an entirely different point to whether W. Murcott and Nadorcott are the same or distinct varieties factually.[36]Furthermore, the combination of paragraphs 9A and 9C(c) of the Amended Defence do not constitute an averment that W. Murcott and Nadorcott are factually distinct varieties. The absence of any substantiation of the point also indicates it is not raised by the current pleadings. I say that because anyone who had it in mind to plead that the two varieties were factually distinct would have immediately realised they would need to plead out the facts said to support that i.e. the differences relied upon. As for the development relied upon by NCP (putting nets over trees to prevent pollination), NCP contend that this plainly could not have created a new variety but, more importantly, Asda have neither pleaded any allegation nor adduced any evidence to this effect.[37]Overall, therefore, the contention that it was open, on the current pleadings, to Asda to run the argument that W Murcott and Nadorcott are factually distinct varieties was, in my judgment, nothing more than wishful thinking.[38]Finally, on this point, I emphasise that, my decision on this Pleading Issue aside, I retain an open mind on the allegations which are currently open on the pleadings. Those are matters for the Trial.

The CEA Notice Issue

[39]I have introduced the Amended CEA Notice and the scope of the documents relied upon above. Here I set out two examples which illustrate the nature of the Amended CEA Notice.[40]The second document referenced in the Amended CEA Notice is the ‘Opposing Affidavit’ of Jose Maria Fontan del Junco. This is a very lengthy Affidavit of 589 paragraphs extending over 283 pages. What is relied upon is described in the Notice as follows:
‘Status of Eurosemillas as master licensee of UCR, para 7; UCR role developing citrus varieties & development of Tango, paras 22-42, sharing of W. Murcott with UCR, para 32, annexes JJ7-11; para 51, Tango characteristics and protection as PBR, para 52-60; differences between Nadorcott and Tango (Tang Gold), paras 60-100 and annexes JJ13-JJ23. Nadorcott growing requirements, paras 101-107; Eurosemillas position as to EDV status of Tang Gold, paras 117-161, annexes JJ25-JJ32; Nadorcott knowledge of activities of Eurosemillas and respondents, para 221 232 – annexes BO31, JJ39-JJ40, relief in Spain JJ41-JJ42, para 465 and JJ74 (a) regarding distinctness of Tang Gold over Nadorcott; para 468, 476 on Eurosemillas’ position as to whether Tango is derived from W. Murcott; para 495-502 on knowledge of Nadorcott of commercialisation and BO34, para 565.’
[41]Although that description identifies the paragraphs or groups of paragraphs relied upon, it also makes clear that reliance is also placed on numerous lengthy exhibits and some of those are separately identified in the Notice (including JJ14-20 inclusive). There are numerous other similar entries in the Amended CEA Notice at the same level of generality.[42]My second example is the Expert Report of Prof Jose Ignacio Cubero Salmeron, one of several expert reports identified in the Notice. It took some investigation to work out which was the relevant report in the bundles because there is more than one report from Prof. Salmeron – at least two are relied upon. Perhaps not surprisingly, the original report is in Spanish, but the bundles contain a rather poor machine translation into English. The Notice identifies that the document is relied upon for ‘Expert opinion on differences noted between W.Murcott and Afourer cultivars in Brazil and whether same variety’. The report dates from 2008 and on its face it appears to be directed to the issue which I have concluded is not open to Asda on the pleadings.[43]Asda’s skeleton argument made it clear that all the materials referred to in the CEA Notice were there as a reservoir of documents which could be deployed as necessary. Albeit in the context of their opposition to the order sought by NCP to exclude reliance on the evidence of Maria del Junco, Jose Salmeron, Timothy Williams and Jose Pellicer Asda submitted in terms that:
‘Rather than pre-emptively and unilaterally preclude ASDA from relying on documents now, the Court should wait and see whether or not ASDA (or indeed NCP) does in fact seek to rely on particular documents at trial. Should either party object to the reliance by the other on a particular document, its entitlement to do so, the admissibility of the material and the weight to be given to it can then be decided on a case by case basis as and when the issue arises.’
[44]This, and other features of the Amended CEA Notice, displays to my mind a deep misunderstanding of not only the proper content of a CEA Notice but also what is required in the Shorter Trial Scheme and particularly so by the time the case has reached the PTR, which should be self-evident. On the first point, a CEA Notice is supposed to identify the hearsay relied upon i.e. the statement which is tendered as evidence of the matters stated. In my view, the sort of compendious references in both examples I have cited simply do not do this. The same applies to all the entries in the Amended CEA Notice.[45]During argument at the PTR I stated I was sorely tempted to strike out the Amended CEA Notice pursuant to the power in CPR32.1 to control evidence and, specifically, the power in CPR32.1(2) to exclude evidence that would otherwise be admissible. Having reflected on the Amended CEA Notice further, I have no doubt that I should strike out the Amended CEA Notice pursuant to CPR32.1(2), even assuming the entries included some admissible evidence. I consider the Amended CEA Notice to be an abuse, not least because it would take some considerable excavation to find any admissible evidence and because the obligation lies on the party serving the CEA Notice to identify in clear terms each (admissible) statement relied upon.[46]This conclusion means that it is not necessary to rule on the other two issues – the Expert Evidence Issue and the Experiments Issue. Suffice to say that I inclined in favour of NCP’s position on the Experiments Issue due to the direction in my CMC Order as to experiments. In any event, I understood the experiments in question to go to the issue which I have ruled is not open to Asda on the pleadings. On the Expert Evidence Issue, it struck me that the situation in this case was not as in COPA v Wright [2023] EWHC 2408 (Ch) where I ruled that it was clear the expert evidence on which COPA sought to rely was duplicative of expert evidence already served by COPA pursuant to directions in that case. In the present case, it was clear that there was likely to be duplication between the numerous expert reports sought to be relied upon in the Amended CEA Notice, but far more significant problems lay in(a) the lack of specificity in the identification of the statements relied upon and(b) the Pleading Issue.

Postscript

[47]Just as I was completing this Judgment (itself delayed somewhat by an urgent application I had to hear on Monday) I received notification of Asda’s application to rely on a Re-Amended CEA Notice which will be considered on its merits.