Nador Cott v Asda: High Court enforces pleading discipline in plant breeders' rights dispute

The High Court's recent decision in Nador Cott Protection SAS v Asda Stores Limited & Anor [2025] EWHC 2896 (Pat) demonstrates the rigorous approach required in Shorter Trial Scheme proceedings, particularly regarding pleading discipline and proper use of Civil Evidence Act notices.

Mr Justice Mellor delivered a robust judgement addressing procedural issues that arose at the Pre-Trial Review of this plant breeders' rights infringement claim. Nador Cott Protection alleged that Asda's Tang Gold mandarin variety infringed UK Plant Breeders' Right number 28016 concerning the Nadorcott variety.

The pleading controversy

The central dispute concerned whether Asda could argue at trial that the W. Murcott and Nadorcott varieties were factually distinct, rather than being the same variety that had been renamed. Asda's skeleton argument indicated an intention to run this case, relying on paragraphs 9A and 9C(c) of their Amended Defence which stated Tang Gold derived from W. Murcott, not Nadorcott.

The Court firmly rejected this position. Reviewing the pleadings and the Agreed Statement of Facts finalised on 10 September 2025, Mellor J found that Asda had consistently accepted that W. Murcott and Nadorcott were the same variety. Paragraph 9 of the Agreed Statement explicitly stated that "W Murcott" was "re-named" as "Nadorcott". Additionally, Asda had agreed to rely on only two distinguishing characteristics between Nadorcott and Tang Gold, accepting these arose from irradiation of the supplied budwood.

When asked where the pleadings identified specific differences justifying a conclusion that the varieties were factually distinct, Asda's counsel acknowledged the need to supplement the pleading. Mellor J characterised this as introducing "an entirely new case" rather than mere supplementation. The absence of any substantiation of factual distinctions in the pleadings indicated this argument was not properly raised.

The Court distinguished Asda's "temporal argument"—that development of Nadorcott occurred after 1988, post-dating the 1985 supply of budwood—from any claim of factual distinctness between varieties. The combination of paragraphs 9A and 9C(c) did not constitute an averment that the varieties were distinct.

The Civil Evidence Act notice abuse

Having ruled on the pleading issue, Mellor J addressed Asda's Amended Civil Evidence Act Notice dated 9 October 2025, which referenced over 2,200 pages of material from disclosure in related South African and Spanish proceedings.

The Court found the notice fundamentally deficient. Taking examples including a 589-paragraph affidavit and expert reports, Mellor J noted the compendious nature of the references failed to identify specific hearsay statements relied upon. The notice appeared designed as a "reservoir of documents which could be deployed as necessary"—an approach fundamentally inconsistent with proper Civil Evidence Act procedure and the requirements of the Shorter Trial Scheme.

Mellor J struck out the Amended CEA Notice pursuant to CPR 32.1(2), characterising it as an abuse. The notice would require "considerable excavation to find any admissible evidence", and the obligation rested on the serving party to identify clearly each admissible statement relied upon.

The decision reinforces that parties in Shorter Trial Scheme proceedings must cooperate to identify real issues early and handle them efficiently, as required by PD57AB paragraph 1.5. Attempting to preserve procedural flexibility through voluminous, non-specific notices undermines this fundamental objective.

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