KL Communications Ltd v Wenfei FU
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warren |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWHC 2026 (IPEC) |
| Docket Number | Case No: IP-2012-000002 |
| Court | Intellectual Property Enterprise Court |
| Date | 22 April 2015 |
[2015] EWHC 2026 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
THE INTELLECTUAL PROPERTY ENTERPRISE COURT
The Rolls Building,
7 Rolls Building,
Fetter Lane, London,
EC4A 1NL
Mr Justice Warren
Case No: IP-2012-000002
Mrc Hall appeared on behalf of the Claimant
Ms Fu appeared in person
(As Approved)
This is an application by KL Communications Limited for an extended civil restraint order against Ms Wenfei Fu which arises in the context of litigation between the parties in the Intellectual Property Enterprise Court.
It will become apparent from what I am going to say that there has been no decision on the merits of the claimant's claim against Ms Fu because it obtained a judgment in default. Underlying all of Ms Fu's submissions to me is her concern that her case has never been dealt with on the merits, her position being that, were she only allowed to present that case to the court, she has a good defence to it.
The underlying subject matter relates to the claimant's database and it is alleged that Ms Fu, who was a former employee, has dealt with that database improperly. Whether she has or has not, or I should say would have had, a good defence to that claim, I have absolutely no idea, not having been taken – quite appropriately, I should add – to the merits of the underlying case.
The claimant's position on the present application is that, in the light of some 11 applications which Ms Fu has made, which it says each of which was bound to fail, there has been a complete failure by Ms Fu to engage in the process of the litigation properly and that she has, as Mr Hall who acts for the claimant says, only herself to blame for the position in which she now finds herself.
I need therefore to go into some of the history and into the particular orders or applications which have led to the current application for the Civil Restraint Order. Before I do that I should say that the orders which are relied on dismissing applications are all ones where there has been no certification by the judge that the applications were wholly without merit. The orders are mainly those of HHJ Hacon in the IPEC, but there is also an order, or two orders, of Mann J, dealing on paper with the applications by Ms Fu for permission to appeal from a particular order of HHJ Hacon, which I will come to in due course.
Notwithstanding the absence of such certification by those judges, I have no doubt that I have jurisdiction myself to determine whether the applications which Ms Fu has made had been made wholly without merit. I have to say that when I read the papers in this matter at an early stage I did wonder whether it was appropriate for me to look at 11 applications rather than send them back to the relevant judges for them to determine whether they would have certified or declared the applications to be wholly without merit, and if they did it would be for me or some other judge, perhaps Mann J himself, to consider whether a civil restraint order should be made. However, although there were 11 of these applications I consider that it was quite appropriate for the matter to be brought before me, or the judge who happens to be me, to deal with on the basis that it would be open to me to decide that these applications were wholly without merit, and it has only taken the course of two hours to deal with that, as well as all the other arguments.
In the context of an extended civil restraint order under paragraph 3 of the Practice Direction 3C to CPR part 3, I have to be satisfied, if I to make an extended order, that a party has persistently issued claims or made applications which are totally without merit. Clearly "persistent" means more than two, because where there are only two applications without merit a more appropriate course is needed a limited Civil Restraint Order under paragraph 2 of the Practice Direction. Whether three is simply a hurdle or whether you need more I do not really need to decide, because really the philosophy behind it, which Mr Bartley-Jones QC addressed in his decision of [2009] EWHC 2067 (Ch), is explained I think by what he said in paragraph 9 of his judgment. This gives a helpful indication of what needs to be established, in particular where he says that the central thrust of the decisions which he refers to is that the court should engage in a graduated proportionate response.. There is a second stage which is, as he puts it in paragraphs 12 and 13 of his judgment, that, assuming the preconditions for making a Civil Restraint Order are satisfied, the court has a discretion. He considered that the most important factor in the exercise of the discretion is the threat level and continued issue of wholly unmeritorious claims or applications. In the present case, as will be seen, the argument on the part of the claimant in seeking the Civil Restraint Order is that there has been persistence in the sense that we have more than three applications, we have had 11, and that the threat or continued issue of wholly unmeritorious claims or applications is a real one.
Ms Fu has said to me that part of her problem is that of course she is a litigant in person and does not understand these procedures, but all she has been trying to do is to ensure that the merits of her claim can be adjudicated. The response to that, which Mr Hall makes and with which I agree, is that, if it is otherwise appropriate to make a Civil Restraint Order, the fact that the litigant is a litigant in person who does not understand procedures and gets things wrong is precisely supportive of making a Civil Restraint Order rather than not making one. Ms Fu needs to understand that by making a Civil Restraint Order, if I do at the end of the day, she does not lose any rights at all. If she has an application or an appeal or a claim that has any merit the judge who hears or deals with an application for permission to launch such an application, appeal or claim will make an order permitting her to proceed. The Civil Restraint Order is only a filter to preclude the making of unmeritorious applications. Frequently in my experience when a judge is asked to give consent when he is the designated judge under a Civil Restraint Order he or she will say "you cannot do it this way because it is not in order, but if you do it another way your claim, which may have actual merit, can then be dealt with procedurally in the proper way," and my perception of the present case, from everything I have been shown, is that it is a failure to understand the procedures and what could be done that has put Ms Fu in the position in which she now finds herself.
By way of background I should mention, jumping ahead a little, a decision of HHJ Hacon delivered on 1 July 2014. I mention the decision to save myself reinventing the wheel, because he sets out the background to the case in the judgment which he gave. I will come to the application with which he was then dealing later in this judgment, but in paragraph 2 and the following paragraphs he gives some of the background. There was a letter before action sent from the claimant's solicitors to Ms Fu at her address in Aylesford Street somewhere in London (it does not matter where). Ms Fu clearly received that letter because she responded to it from her address in Rosebury Road stating that all further correspondence should take place at that address. It was on 1 November that a claim form was issued and it was sent to both of the addresses. It was returned from the Aylesford Street address. HHJ Hacon recorded that in paragraphs 4, 5 and 6 of his own judgment. I understand that it is, and always has been, Ms Fu's position that she never received that claim form. That is why no defence or acknowledgement was served.
On 14 January the claimant issued an application for judgment in default and on 25 February 2013 HHJ Birss QC then gave judgment in default against Ms Fu. HHJ Hacon was satisfied that that was correctly served. This does not shut Ms Fu out from being able to run her case, but in order to do so she had to set aside the judgment of the court which had been properly obtained. As HHJ Hacon records in paragraph 7 of his judgment, it was not until the matter was before him that such an application to set aside was in fact made.
On 10 June 2013 District Judge Lambert ordered Ms Fu to pay the costs of the action up to the date of the judgment in default, which amounted to some £5,730. On 1 August 2013 the claimant obtained a writ of the costs order to date and sought execution of the order. The judge records in paragraph 9 of his judgment that Ms Fu had applied for a stay of execution giving a different address, but nothing turns on that. All I need to record, as the judge recorded, is that on 16 August 2013 Master Eastman made an order staying the execution of the enforcement order. That provoked a response from the claimant, which applied to have that order lifted.
The judge recorded in paragraph 10, which is something of a merits point but nothing really turns on it, that he had seen all the papers in the application before Master Eastman in which Ms Fu had said that she wanted a stay of execution because she was not aware of the case against her. HHJ Hacon said that that seemed to him to be very unlikely. Be that as it may, there was a further application on 2 October 2013 by Ms Fu seeking various matters, including disclosure of the database files that the claimant was relying on and more details of the costs. As the judge records, in fact inspection of the files had already been offered in a letter of 24...
To continue reading
Request your trial
-
Richard Perry v F H Brundle (a private unlimited company) and Others
...as no bar to the granting of an extended CRO. Mr Baran directed my attention to the judgment of Warren J dated 22 April 2015 in KL Communications Ltd v Fu [2015] EWHC 2026 (IPEC). This concerned an application for an extended CRO against the defendant, Ms Fu. The claimant relied on a total ......
-
Richard Perry v F H Brundle and Others
...to be totally without merit." 12 I added a further comment, referring to a judgment of Warren J in KL Communications Ltd v Fu [2015] EWHC 2026 (IPEC): "[28] There is also an observation which I take from the judgment of Warren J in KL Communications, at [8]. A CRO should not in practice sig......