Guardian Barriers v Global Vessel Security
| Jurisdiction | England & Wales |
| Judge | Judge Hacon |
| Judgment Date | 22 September 2014 |
| Neutral Citation | [2014] EWHC 3753 (IPEC) |
| Court | Intellectual Property Enterprise Court |
| Date | 22 September 2014 |
| Docket Number | Case No: IP14M02239 |
[2014] EWHC 3753 (IPEC)
IN THE HIGH COURT OF JUSTICE
INTELLECTUAL PROPERTY ENTERPRISE COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
His Honour Judge Hacon
Case No: IP14M02239
Miss Ashton Chantrielle (instructed by N/K) appeared on behalf of the Applicant
Mr Piers Strickland (instructed by N/K) appeared on behalf of the Respondent
Approved Judgment
This is an application for security for costs in an action for patent infringement of community registered design. It concerns, as I understand it, barriers which are used to prevent unauthorised intrusion from pirates onto ocean going ships such as container ships or of tankers.
The defendant seeks security pursuant to CPR 25(3)(2)(c) that is to say that there is reason to believe that the claimant will be unable to pay the defendant's costs if ordered to do so. The leading authority is the decision of the Court of Appeal in Mbasogo & Anr v. Logo Limited [2006] EWCA Civ 608, which was more recently discussed by Briggs J in Jirehouse Capital v Beller [2008] EWHC 725 (Ch). It is clear from those authorities that the test is whether a claimant's ability to pay the defendant's costs falls below the balance of probabilities.
There are two reasons, according to the defendants, why I should conclude that the defendants would be unable to pay the costs. Firstly, according to the published accounts of the claimants the first claimant is nothing more than a shell company with its only assets apparently being the patent and suit and the community registered design and according to the published accounts the second claimant only has assets of £1,000.
It was not suggested today that those published accounts are in any way inaccurate and do not reflect the current position. The defendants also rely on an email from the claimant's solicitors dated 11 July 2014 in which they say this:
"As you know the claimants in this action are a start operation, as is normal with start up companies cashflow is tight. Our clients do not have the cashflow to pay £50,000 into court and would suffer obvious prejudice by being forced to make such a payment." (Quote unchecked)
It seems to me on the basis of that evidence that the claimant would be unlikely to pay the defendant's costs subject to countervailing evidence from the claimants.
The first point made on behalf of the claimants by Mr Strickland, who appears for the claimants, is that although I must assess the evidence as of today, the assessment is concerned with whether the claimants would be able to pay the defendants' costs following a trial. As matters stand, a trial would not happen in this court before the summer of 2015 and possibly there may be no trial until September or October 2015. In all events it seems quite likely that any order to pay the defendants' costs would not be likely to happen until the middle of autumn of 2015.
Mr Strickland submitted that when that is borne firmly in mind I should assume that by that time the claimant will have sufficient funds. In particular, my attention was drawn the evidence of Mr Stevens in this regard. Mr Stevens is the director of both claimant companies. He enclosed an exhibit DS7, which he says is evidence of imminent installations with customers, for which the claimants have not yet received money. I was told by Mr Strickland on instruction that in fact Mr Stevens had got that wrong or had made a mistake. I was told that in fact the installations referred to in that exhibit had been installed, although the claimant has not yet been paid. Mr Stevens also provides evidence of sales quotations that have been provided by the claimants...
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