Wednesday, 12 October 2011

PCC Page 41: Liimiting damages and “family” disputes

Regally regaled by the Chartered Institute of Patent Attorneys (CIPA), the PCC Pages seek to explain how litigation works in the recently-revamped Patents County Court (PCC) for England and Wales, taking as its theme a dispute between Cautious Co and IPOff Ltd as to whether IPOff has infringed the IP rights of Cautious in its robotic octopus. In this episode, the 41st, former CIPA President Alasdair Poore detaches himself from his beloved topics of disclosure and privilege and faces up to the harsh realities of damage limitation exercises where both parties are in pretty bad shape.
Over the last few months Cautious’s octopus has spent too much time focusing on the tentacles in his own case, and has taken his eye off the ball -- not a good thing for a football results predictor.   Meanwhile, stories unfold in the PCC which deserve some mention. The case of Victor Ifejika v Charles Ifejika shows that stranger events can call on the skills of His Honour Judge Colin Birss QC.  More on that in a moment. First, one year has passed since the PCC was first swept by the new broom.  The Report Card indicates that substantial progress is being made in the PCC.  The Judge reported at the CIPA Congress that the number of cases issued in the PCC has been increasingly steadily, with over 100 new cases in the last year.  Users are gaining confidence in the forum.  The Judge’s track record is dealing with cases in a sensible, robust and proportionate way – as illustrated in Ifejika v Ifejika.  
 Secondly, readers will already be aware of the implementation of the damages limit in relation to the remaining all proceedings in the PCC.  This came into effect on 1 October 2011, under the provisions of the Patents County Court (Financial Limits) Order 2011 (reported on the PatLit Blog here). The list is still shown as part of the Patents Court Diary's Pending matters – see the section at the end under the heading Patents County Court (note that the information on the Patents County Court page is still wildly out of date; can the Ministry of Justice please sort this out?) shows that there has been at least one full trial on a patent case issued under the new regime in Mastermailer v Horler (judgment awaited).  It is time for the court to get its teeth into more patent cases, and for patent attorneys to show their clients (or perhaps more accurately, their clients’ competitors) that the PCC means business. The Judge (and this octopus) calls for more patent attorneys to get their tentacles into the PCC.  
Thirdly, the court has moved to The Rolls Building (Court 20 – is this the final destination) Meanwhile, what of Ifejika v Ifejika?  Reported on 6 October 2011 at [2011] EWPCC 38 from the The Rolls Building, one notices something is immediately amiss with the name of the case.  Claimants and defendants with the same name are usually confined to family disputes.  You will not be disappointed to discover that this is the case here too. 
 This case was started in 2008, in the High Court, before the new PCC regime was in place.  It originates in a dispute between two brothers about registered designs and unregistered design rights in the “Hot House” contact lens cleaning device.  The case has already been up to the Court of Appeal [2010] EWCA (Civ) 563 (while it was being heard in the High Court, ironically by Judge Fysh QC, the former PCC judge, but sitting as a Deputy Judge in the Chancery Division).  Following this it was transferred to the PCC in early 2011.  It has all the appearance of an unfolding tragedy (in the dramatic sense). 

 The case has now been before Judge Birss on three occasions.  On the first, he made some enquiries about how much was at stake.  The response was that, in relation to one of the designs the amount was only £35!  Estimates for the other design ranged from £25,000 to £500,000. (see para 2 of the most recent judgment, at [2011] EWPCC 38).  This illustrates a very practical approach to making parties think about how valuable a case is.  In IP cases, where typically the prayer is for an inquiry into damages, the defendant should use this to press for further information, so that one can be sure that the case is being addressed in a proportionate manner. At the second hearing, case management directions were made.  They are usefully appended to the end of the judgment at [2011] EWPCC 38, in the Annex. The third hearing was about a further development – and shows a practical application of the “proportionate approach” to be used in the PCC.  The trial was scheduled for 19 October.  At the case management conference the judge, it was ordered that three witnesses were to be heard.  One of these, the only independent witness in the case, had reportedly stated in emails in the past: "I cannot believe that Victor is still trying to lay claim to your invention just because he provided financial support to the project".  Despite his now saying that his recollection of events quarter of a century ago might not be too reliable, Charles Ifejika regarded him as a crucial witness.  Unfortunately, this witness had serious family issues, including dealing with the death of his father.  These issues meant that he would be out of the country and could not any longer be present at the hearing.  The application was to reschedule the hearing. 
 Victor Ifejika opposed the adjournment of the hearing.  He was in serious financial difficulties – caused partly by his previous solicitors claiming costs of the hearing before Judge Fysh QC.  This money claim would take place before any new PCC hearing date (on the substantive dispute).  The only lifeline was Victor’s application for costs in the Court of Appeal (in which he was successful), but this had been adjourned until after the PCC hearing! 
 Judge Birss QC looked at this difficult family tragedy in a practical way.  The case had been going on far too long already.  It was important to keep it proportionate.  Charles Ifejika’s witness had given a witness statement which could be relied upon.  It was right that, in normal circumstances the witness should be open to cross examination, and this inability to do this would affect the weight to be placed on the evidence. However, the risk was that, if the hearing was delayed there would be no hearing, because of Victor’s financial position – brought about at least in part by the long running dispute.  Balancing these risks and applying a sensible approach, Judge Birss QC decided (para 20) that the original hearing date should be retained. Score (an octopus view): Birss 1 Dickens 0".

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