Claydon Yield-O-Meter Ltd v Mzuri Ltd
| Jurisdiction | England & Wales |
| Judge | Hacon |
| Judgment Date | 17 May 2021 |
| Neutral Citation | [2021] EWHC 1322 (IPEC) |
| Date | 17 May 2021 |
| Docket Number | Case No: IP-2018-000045 |
| Court | Intellectual Property Enterprise Court |
[2021] EWHC 1322 (IPEC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Hacon
Case No: IP-2018-000045
and
Thomas St Quintin (instructed by Nash Matthews LLP) for the Claimant and Third Party
Brian Nicholson QC and David Ivison (instructed by Shakespeare Martineau LLP) for the Defendants
Approved Judgment
HIS HONOUR JUDGE Hacon
Introduction
On 22 April 2021 I handed down my judgment in the trial of this action. A draft of the judgment had been sent to counsel on 19 April 2021. The Claimant's claim for infringement of two patents was dismissed. The judgment was handed down remotely pursuant to the Covid-19 Protocol, being circulated on that date to the parties' representatives by email and made public by release to Bailii.
On 22 April 2021 I was hearing a trial in other proceedings. The parties were informed that no attendance was required on that date to deal with matters consequential to the judgment.
In the normal course, when consequential matters if not agreed are adjourned to be heard, or decided on the papers, on a date after a judgment is handed down, the parties by consent seek an order adjourning the hearing at which the decision to be appealed is made until the date of the court's ruling on consequential matters. This is often together with a direction that the period of 21 days for filing an appellant's notice shall run from the date of that future ruling. No such order was sought by either side in the present case.
On 13 May 2021 the Claimant's solicitors wrote to the Defendants' solicitors enclosing a draft of a proposed order. It included a reference to the Claimant seeking permission to appeal insofar as the judgment related to the validity of one of the patents in suit.
On 14 May 2021 the Defendants' solicitors replied, asserting that this court no longer has jurisdiction to grant permission to appeal since no application was made to this court at the hearing at which the decision to be appealed was made, within the meaning of CPR 52.3(2)(a) and there was no application to adjourn the date of that decision. Further, the 21 day time limit for filing an appellant's notice, imposed by CPR 52.12(2)(b), had expired on 13 May 2021; an application to vary that time limit could only be made to the Court of Appeal, pursuant to CPR 52.15(1).
Late in the afternoon of Friday, 14 May 2021 Mr St Quintin, counsel for the Claimant, sent an email to the court, copied to counsel for the Defendants. The court received written submissions from counsel for the Defendants, Mr Ivison, on Monday, 17 May 2021.
The rule
CPR 52.3(2)(a) provides:
(2) An application for permission to appeal may be made –
(a) to the lower court at the hearing at which the decision to be appealed was made;
CPR 52.15(1) provides:
(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.
The Claimant's arguments on the Covid Protocol
Mr St Quintin advanced two arguments in his email of 14 May 2021 relating to the Covid Protocol. The first was that a remote handing down of a judgment under the Covid Protocol does not amount to a hearing at which the decision to be appealed was made within the meaning of CPR 52.3(2)(a). The second was that the remote handing down of a judgment under the Covid Protocol either automatically adjourns the CPR 52.3(2)(a) hearing or alternatively in the present case that hearing must be taken to have been adjourned because the court intended a further hearing if the parties were to be unable to agree an order on consequential matters.
I do not accept either of these arguments. I can see no rational basis for treating the handing down of a judgment under the Covid-19 Protocol as being different from the handing down of a judgment in open court in relation to permission to appeal. I accept that there was no hearing in the usual sense of the term on 22 April 2021. But even where a judgment is handed down in open court, it is not unusual for the parties to have been informed by the court that they need not attend and that there will be a subsequent hearing of submissions on consequential matters if not agreed, or alternatively that such matters will be decided by the court in writing. In those circumstances there is no hearing in the usual sense when the judgment is handed down. The question is whether there is nonetheless a hearing within the meaning of CPR 52.3(2)(a). If so, in my view there is also a hearing in that sense when a judgment is handed down under the terms of the Covid Protocol.
Create Financial
Before looking at the law more generally, I refer to a case cited by Mr St Quintin, namely Create Financial Management LLP v Lee [2020] EWHC 2046 (QB) and the further arguments he made by reference to that case.
In Create Morris J gave judgment in an application for an interim injunction. It was handed down in the afternoon of 17 July 2020. The parties considered its terms for about 40 minutes and then the hearing resumed. There was further oral argument and a supplementary judgment. It was apparent that further matters had to be considered and that another hearing would be necessary the following week. One followed on 20 July 2020 at which the judge approved a draft Order. Thereafter the defendants sought permission to appeal. It was recognised by the judge and the parties that a further issue remained outstanding. The judge gave directions for a further hearing which took place on 24 July 2020.
At the hearing on 24 July 2020 the claimant raised the contention that the court had no jurisdiction to give permission to appeal since the application for permission had not been made – it had not been made at the hearing at which the decision to be appealed was made, in compliance with CPR 52.3(2)(a), namely the hearing of 17 July 2020. The defendants...
To continue reading
Request your trial
-
High Court Clarifies Appeal Procedures Following Remote Hand Downs of Judgments
...time limits applied by CPR Part 52 — regardless of the COVID-19 Protocol. [1] Claydon Yield-O-Meter Ltd v Mzuri Ltd and Anor [2021] EWHC 1322 (IPEC). [2] See Claydon Yield-O-Meter v Mzuri Ltd & Anor [2021] EWHC 1007 (IPEC)). [3] Create Financial Management LLP v Lee [2020] EWHC 2046 (QB). [......