Amon v Raphael Tuck & Sons Ltd

Dec. 19. DEVLIN J. read the following judgment: The plaintiff alleges in his statement of claim that he is the inventor of an adhesive dispenser in the shape of a pen which he calls the “Fastik” pen and in respect of which he has filed an application for a provisional patent. He alleges that in August, 1953, he was in negotiation with the defendants with the object of arriving at an agreement under which they were to market the pen and that in the course of the negotiations he disclosed the “know-how” of his pen. On February 22, 1954, the negotiations broke down. The plaintiff now finds, he says, that the defendants are manufacturing a pen which they call the “Stixit” pen and which contains three distinctive features of the “Fastik” pen. In short, he claims that the defendant have stolen his know-how. In legal language he says that there was an implied contract that the defendants would treat as confidential the information given to them during the negotiations and that they are in breach of that contract.

The statement of claim was delivered on June 1, 1955. Before delivering a defence the defendants applied to the master for an order under R.S.C., Ord. 16, r. 11, that one Dachinger should be joined as a defendant. They filed an affidavit by him in which he expresses his willingness to be joined. He says in effect that he is the inventor of the “Stixit” pen, that he is in the employment of the defendants and is assisting them in marketing the pen. He also in his affidavit gave an account of the negotiations in August, 1953, very different from that set out in the statement of claim. He says that he came to England in April, 1953, and was introduced to the plaintiff and disclosed to him confidentially his invention. According to him the negotiations to which the plaintiff has referred took place between himself and the defendants with the plaintiff acting as an intermediary. The “Fastik” pen is, he says, an embodiment of his invention and made by the plaintiff in breach of confidence; and he wished to be made a defendant so that he could counterclaim against the plaintiff.

The plaintiff objected to the joinder and the master refused to order it; against this refusal the defendants now appeal. The master refused because he decided that he had no jurisdiction to make the order, and at the first hearing before me Mr. Falk supported the master's decision solely on that ground. He said, however, that he wished to contend in the alternative that if the court had jurisdiction, this is not a case in which its discretion should be exercised. For this purpose he had filed some further affidavits which the defendants had not then had time to consider and answer. In these circumstances he asked that I should deal first with his submission on jurisdiction. This is not usually the convenient course, but as a special appointment had been made for the hearing of the summons it seemed to me on the whole the best one to take.

The material words of rule 11 are those which give power to the court to order

“that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”

I found it necessary to go very fully into the cases, for it is not easy to select any one of them...