Amon v Raphael Tuck & Sons Ltd

JurisdictionEngland & Wales
Judgment Date1956
Date1956
Year1956
CourtQueen's Bench Division
[QUEEN'S BENCH DIVISION.] AMON v. RAPHAEL TUCK & SONS LTD. [1955 A. No. 1298] 1955 Nov. 10, 23; Dec. 7, 19. Devlin J.

Practice and Procedure - Parties - Joinder - Application by defendants to add further defendant - Allegation by plaintiff that confidential information made use of in design of a pen - Claim by plaintiff for injunction restraining defendants from making use of information - Claim by third person to be inventor of defendants' pen - Third person's claim to be entitled to mimimum royalty from defendants on gales of pen - Whether third person a “necessary” party to the action - R.S.C. Ord. 16, r. 11.

Defendants applied under R.S.C., Ord. 16, r. 11, for an order that one D. be joined as defendant in an action. In the action the plaintiff alleged that he was the inventor of a certain design, known as the “Fastik” design, for a pen, details of which he had imparted in confidence to the defendants under an agreement, and that the defendants, in breach of a duty owed to him, had disclosed the design to other persons and had made use of his information in deriving from it a competing design, the “Stixit” design, for a pen which they had advertised and canvassed to the retail trade, and he claimed damages for breach of contract and an injunction restraining the defendants from making use of the information without his consent. D. alleged that he was the inventor of the “Stixit” pen; that it was that design from which the plaintiff had obtained his invention of the “Fastik” pen; that he had entered the defendants' employment for the purpose of assisting them to market the “Stixit” pen and that there was an agreement between him and the defendants under which he was entitled to a royalty or commission on the sales of the “Stixit” pen and which provided for the payment to him of a minimum annual royalty; D. further alleged that the agreement contained an express clause requiring the defendants to undertake the manufacture and distribution of the “Stixit” pen in certain territories. D. was willing to be made a defendant so that he could counterclaim against the plaintiff, but the plaintiff denied the allegations of D. and objected to the joinder.

Held that the application was, in effect, an application for leave to intervene against the will of the plaintiff; that in such a case the appropriate test to determine whether the intervener was a party “who ought to have been joined, or whose presence before the court may be necessary” to enable the court completely and effectually to adjudicate upon and settle all the questions involved in the cause or matter within Order 16, r. 11, was: Would the order for which the plaintiff was asking directly affect the intervener, not in his commercial interests, but in the enjoyment of his legal rights? Applying that test, D. was within the rule, for it was sufficient if an intervener could show reasonable grounds for intervention, and the injunction sought by the plaintiff in effect would restrain the further manufacture of the “Stixit” pen and therefore, although the fact that D. was entitled to a royalty or commission gave him only a commercial interest in the continued manufacture, if he could show that the defendants were by contract obliged to manufacture a reasonable quantity of “Stixit” pens he would have a right of action against them if they did not do so, and might ask in a subsequent action for specific performance of an agreement which the court had ordered not to be performed. The court accordingly had jurisdiction to make the order sought which, in the circumstances was one which it was proper that the court in its discretion should make.

Per Devlin J. I do not agree that the main object of the rule is to prevent multiplicity of actions, though it may incidentally have that effect. The primary object of the rule I believe to be to replace the plea in abatement. I do not think that the words of the rule which I have to construe represent any addition to the powers of the court initiated by the Judicature Acts. I do not think that the necessary parties contemplated by it are other than those who would have been considered by a court of equity to be necessary before the passing of the Judicature Acts. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.

CHAMBERS SUMMONS.

The plaintiff, Robert Amon, issued a writ claiming against the defendants, Raphael Tuck & Sons Ltd., (a) damages for breach of agreements to treat as confidential information disclosed by him to the defendants relating to his design of an adhesive dispenser; (b) damages for breach of duty owed by the defendants not to disclose to other persons or to make use of the information; and (c) an injunction restraining the defendants from disclosing to other persons or making use of the information without his consent.

By his statement of claim he alleged that he was the inventor of a new and distinctive design, the “Fastik” design, for an adhesive dispenser pen in respect of which a certificate of registered design dated February 23, 1954, was issued under the Registered Designs Act, 1949, details of which he had disclosed to the defendants; that in the circumstances the defendants owed him a duty not to disclose or to make use of the information as to the “Fastik” design; that, in breach of that duty, the defendants had made use of the “Fastik” design in deriving therefrom a competing design, the “Stixit” design, and had widely advertised, canvassed to the retail trade, and manufactured and threatened and intended to continue to do so, and to market, refills designed according to the “Stixit” design; and that, as a result of the defendants' conduct he had been forced to reduce the price of his refill.

The defendants applied to the master under R.S.C., Ord. 16, r. 11,F1 for an order that one Hugo Dachinger, who claimed to be the inventor of the “Stixit” design and alleged that the “Fastik” design was an embodiment of his invention made by the plaintiff in breach of confidence, should be joined as defendant. The plaintiff objected to the joinder and Master Harwood refused to order it. The defendants appealed, and Devlin J. adjourned the hearing into open court.

The facts are more fully stated in the judgment.

Guy Aldous for the defendants.

E. V. Falk for the plaintiff.

Cur. adv. vult.

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...

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5 books & journal articles
  • Action
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    • DSC Publications Online Sasegbon’s Laws of Nigeria. Volume 1 Action
    • 8 September 2016
    ...right but that an order in the nature of an injunction may be made which affects his rights: Amon v. Raphael Tuck and Sons Limited (1956) 1 All E.R. 273 at page 280; Vavaseur v. Krupp (1878) 9 Ch.D. 351. 3. “In action claiming specific performance of contracts.” Dix v. Great Western Railway......
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    ...of this particular rule. That was certainly the view expressed by Devlin, J. (as he then was) in Amon v. Raphael Tuck & Sons Ltd . (1956) 1 All E.R. 273 when after a review of a number of authorities, he said at p.279: - “Accordingly, this case, in my view, really turns on the true construc......
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    • 6 February 2019
    ..."As was observed by Devlin J. in Amon. v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273 the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question i......
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