Lifestyle Equities CV v Santa Monica Polo Club Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Recorder Douglas Campbell |
| Judgment Date | 04 February 2020 |
| Neutral Citation | [2020] EWHC 198 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC 2016-003385 |
| Date | 04 February 2020 |
[2020] EWHC 198 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
INTELLECTUAL PROPERTY
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr. Recorder Douglas Campbell QC
(Sitting as a Judge of the Chancery Division)
Case No: HC 2016-003385
Mr. Thomas St. Quintin (instructed by Brandsmiths) for the Claimants
Dr. Tim Sampson (instructed by the Fifth and Twelfth Defendants) for the Fifth and Twelfth Defendants
Approved Judgment
Mr. Recorder Douglas Campbell QC:
This is the second trial of these proceedings according to an order made by Arnold J (as he then was) on 3rd April 2017, in particular paragraph 9 thereof. The first trial was expedited as ordered by paragraph 10 of the same order. I heard the first trial in 2017. In general terms, by way of summary, I found for the claimants and I handed down judgment on 21st December 2017.
Originally, there were no less than 16 defendants to this action. The claims against most of them have now settled. D3 and D11 are in administration and the claims against them are stayed pursuant to Schedule B1 of the Insolvency Act 1986. They were placed into administration on 16th January 2018, as is accepted in the Points of Defence, at paragraph 5. The action therefore proceeds against D5, Mr. Kashif Ahmed, and D12, Mrs. Bushra Ahmed, both private individuals. Without intending any discourtesy to either of them, I will refer to them as D5 and D12 for the purposes of this judgment. The same approach has been adopted in the case papers.
This second trial was originally listed to commence on 15th July 2019, but was adjourned by Penelope Reed QC, sitting as a deputy judge of this court, with what the judge stated was “enormous reluctance” on the grounds of evidence about D5's ill-health. It seems that part of the problem, though not all of it, was not merely D5's illness, but that D5 became a litigant in person and, presumably, D12 as well, on Sunday, 14th July, which was the day before the trial was due to be heard. The defendants (meaning D5 and D12) are represented today by Dr. Timothy Sampson. He submits to me, and I accept, that the defendants’ solicitors, although they were formally on the record, were not doing much for the defendants for some time prior to Sunday, 14th July.
D5 was ordered to pay the costs thrown away by the adjournment, which were summarily assessed in the sum of £39,100. D5 unsuccessfully sought permission to appeal that costs order and did not pay it.
On that occasion, the defendants did not seek an adjournment on the basis that there were pending proceedings against the administrators, nor on the basis that they were unable to obtain documents which supported their case. It is the claimants' submission that nothing has changed since then.
The present application before me is the defendants' second application to adjourn the second trial.
As originally issued on 24th January 2020, adjournment was sought on two grounds:
i) there are proposed proceedings against the administrators of the former liability defendants in this case, that could result in appeal against the findings of trade mark infringement and thereby render the present claim of joint tortfeasorship against D5 and D12 void;
ii) the claimants have frustrated all attempts to agree trial proper bundles with the fifth and 12th defendants.
These were not quite the grounds on which the application to adjourn was made in oral submissions to me. Point (i), relating to that potential appeal was indeed pursued but two further points, not in the application notice, were elaborated. One was about the alleged inability of the defendants to obtain further documents which they believed would support their defence. The other was a point raised in combination with the others, namely that the defendants said they lacked money. The point about bundling was not pursued until I expressly raised it.
The claimants’ response to this application to adjourn generally, before one goes into the detail, is that the application is made very late. I agree, it is made very late. It is heard on day 1 of the trial. The claimants also submit there is no prospect of compensation if an adjournment is granted. I am less impressed with this point, because although it is true in theory, there may be no prospect of compensation anyway. I refer, in particular, to D5's failure to pay the costs that were ordered last time. The claimants also raise the question, which I believe is a very valid one, of: if the proceedings were to be adjourned, when would they come back? They submit that the delay would be indefinite and Dr. Sampson did accept it would “no doubt be a considerable time”.
The onus lies on the applicant for adjournment. I was referred to the Chancery Guide for the relevant principles relating to such applications. I prefer to take them from the judgment of Coulson J in Fitzroy Robinson Limited v Mentmore Towers Limited [2009], EWHC 3070 (TCC). In paragraph 9 of that judgment, the judge stated as follows:
“More particularly, as it seems to me, a court when considering a contested application at the 11th hour to adjourn the trial, should have specific regard to:
a) The parties' conduct and the reason for the delays;
b) The extent to which the consequences of the delays can be overcome before the trial;
c) The extent to which a fair trial may have been jeopardised by the delays;
d) Specific matters affecting the trial, such as illness of a critical witness and the like;
e) The consequences of an adjournment for the claimant, the defendant, and the court.”
The parties have not expressly directed themselves to these points, but the submissions they did make overlap with these points to a very considerable extent. I will consider points (a)–(e) as follows.
a) The parties' conduct and the reason for the delays;
I begin with the defendants' first point, which is the possibility of an appeal following proceedings against the administrators of the former liability defendants in this case. I consider the timings are important here. I handed down my judgment on 21st December 2017, over two years ago. The order I made on that occasion runs to a number of paragraphs. I would draw particular attention to paragraphs 4 and 5, where I granted declaratory relief in relation to the infringement and paragraph 21, where I rejected the defendants' application for permission to appeal.
No application was ever made (and still has not been made) to the Court of Appeal for permission to appeal. There have been no grounds of appeal at any time. The closest that I have seen is paragraph 46 of Dr. Sampson's skeleton argument for this application, where he sets out various points which he suggests could properly be incorporated into grounds of appeal to be put before the Court of Appeal in due course.
Dr. Sampson also explained to me it would take about a day for him to produce a more finalised document. I am not asked to grant permission to appeal against my order in the first trial. Indeed, I have already refused it. It does appear to me that, reading paragraph 46, it is not in fact necessary to go further than the judgment itself and perhaps the evidence given in the public trial in order to prepare grounds of appeal. I am not satisfied it would actually require any internal documents of the defendants at all.
It also appears to me that D5 and D12 could have also applied to the Court of Appeal themselves for permission to appeal against the declaration, at any rate, years ago. To be fair, Dr. Sampson did accept that the defendants, as individuals, could have made such an appeal. Of course, that was over two years ago now.
It also seems to me that the defendants were expressly advised of the ability to make such an application. My attention was drawn to two letters, both of which are exhibited by Mr. Ahmed. The first is a letter actually to Ms. Bushra Ahmed, D12, dated 22nd January 2018,...
To continue reading
Request your trial
-
Lifestyle Equities CV v Santa Monica Polo Club Ltd
...for a second adjournment of the second trial. I dismissed that application for reasons set out in my judgment in respect thereof: see [2020] EWHC 198 (Ch). The trial continued on the next day, Wednesday 5 th February 2020 with the Defendants representing themselves. In the case of Ms Ahmed......