Lifestyle Equities CV v Santa Monica Polo Club Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Recorder Douglas Campbell |
| Judgment Date | 20 May 2020 |
| Neutral Citation | [2020] EWHC 1326 (Ch) |
| Date | 20 May 2020 |
| Court | Chancery Division |
| Docket Number | Claim No: HC-2016-002285 |
[2020] EWHC 1326 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (CHD)
INTELLECTUAL PROPERTY
Remote Hearing by Skype for Business
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr. Recorder Douglas Campbell QC
Claim No: HC-2016-002285
Mr. Thomas St. Quintin (instructed by Brandsmiths) for the Claimants
Dr. Timothy Sampson (via Direct Access) appeared for the 5 th and 12 th Defendants
Approved Judgment
Mr. Recorder Douglas Campbell QC:
I handed down my judgment in this matter on 23rd March 2020, having supplied the parties with a draft shortly before. It is reported at [2020] EWHC 688 (Ch). In that judgment I explained that I did not believe Mr. Ahmed's evidence that he had repaid a certain loan made to him personally. I said that it would have been an easy thing to for him to prove using his own personal records but that he had not done so, nor had he even explained what the loan was for if not for something to do with the infringement. See my judgment at paragraphs [19] and [98]–[101].
On Monday this week, namely 17th May 2020, Mr. Ahmed said via his counsel Dr. Sampson that this finding was wrong. In particular, Dr. Sampson submitted that I could amend my judgment pursuant to the approach identified in Charlesworth v Relay Roads [2000] 1 WLR 230 and further explained by Lady Hale in In Re. L [2013] UKSC 8 at paragraphs [20]–[27]. Lady Hale emphasised that the overriding objective must be to deal with the case justly, but that every case depends on its particular circumstances. Lady Hale added that a relevant factor was whether any party has acted upon the decision to his or her detriment, but Dr. Sampson accepted that this factor did not apply here.
Mr. St Quintin accepts the correctness of this but reminds me that now the overriding objective includes dealing with the case at proportionate cost. See CPR 1.1(2), which also defines how dealing with a case justly and at proportionate cost is to be approached.
Dr. Sampson submitted that on the basis of this legal approach I should revise my judgment for the reasons explained by the defendant's expert Mr. Clegg in his third witness statement and also in a letter dated 14 May 2020 which was sent to the court.
In his third witness statement Mr. Clegg claims to have an “understanding” that the relevant loan agreement has been repaid. This is for two reasons. First, because of a reconciliation summary which he exhibits at DC3 and which he says was provided to the solicitors acting for D11's administrators on 6th June 2018. Secondly, because he says that the administrators have not come back to his firm in the 22 months since then.
In the letter from Mr. Clegg dated 14 May 2020 he exhibited a Final Progress Report from the administrators dated 7 May 2020. My attention was particularly drawn to paragraph 2.11 thereof, headed “Connected Party Claims”. The administrators state that having reviewed the prospect of successful recovery and in view of the likely costs involved, it was decided not to issue proceedings against unidentified “remaining parties”.
I have a number of concerns about this evidence, beginning with exhibit DC3 to Mr Clegg's witness statement. First, I have not understood and I was not told what documents were used to prepare this reconciliation. The numbers do not even match up with the numbers relating to the loan which I found had not been repaid.
Secondly, I do not understand how this reconciliation is said to explain or show the repayment of the loan, even if this reconciliation is correct. Dr. Sampson was understandably unable to go beyond the document itself. Mr. St Quintin accurately described Mr. Clegg's evidence on this as conclusory and almost entirely lacking in explanation.
Thirdly, I have not been shown any of the correspondence with the administrators to show whether Mr. Clegg's evidence about them is correct. For instance, Mr. Clegg told me about a letter of claim from the administrators in his oral evidence at the trial. That seems to me at least potentially inconsistent with Mr. Clegg's claim that they had not come back to him. All I have seen is this final report stating that the administrators did not consider it worthwhile pursuing parties which were not even named in the report. As Mr. St Quintin points out, this position is entirely understandable if Mr. Ahmed had said the same thing to the administrators as he has consistently said to the claimants and to the court, namely that he has no money. The evidence falls far short of any acknowledgment on the part of the administrators that the loan has been repaid.
Fourthly, I have not been given any explanation as to why this reconciliation was not put forward at the trial, given that it long predates it and is said to show that the loan was repaid.
Fifthly, I still do not have any of the evidence of Mr. Ahmed himself which I pointed out in the judgment was lacking. For instance, I have nothing from Mr. Ahmed himself showing personal records, such as from his own bank, showing that the loan from D11 was repaid. I still do not have any explanation from Mr. Ahmed saying what the loan was for if it was not for something to do with the infringement. Indeed, I do not even have evidence from Mr. Ahmed confirming that what Mr. Clegg now says is correct.
Mr. St Quintin also made the valid point that if I were to rely on this evidence, fairness demands that the trial be reopened with further examination of Mr. Clegg and potentially further disclosure. Dr. Sampson did not dispute that. The undesirability of adopting this course is obvious, particularly since this is the second trial already and was only held after an adjournment.
Mr. St Quintin also reminded me of the importance, when assessing evidence, of bearing in mind the well-known Ladd v Marshall criteria although, as Dr. Sampson pointed out, their strict application is somewhat more relaxed in applications of this kind (see Charlesworth at p237E to F). Mr. St Quintin submitted that these criteria were nevertheless not satisfied here. I accept that submission.
Dr. Sampson also made a secondary point that the loan should be subjected to a 90% discount. That is a matter for potential appeal, but not for revisiting the judgment, as I think Dr. Sampson accepted.
For all of these reasons this new material is not sufficient for me to revisit the conclusion I reached in my judgment on this issue and I decline to do so. I therefore dismiss this application.
[Further submissions]
I now come to the issue of the costs of the trial. It is common ground that my discretion should be exercised in accordance with CPR Part 44.2, part of which I hereby incorporate into this judgment:
“(1) The court has discretion as to –
a) whether costs are payable by one party to another;
b) the amount of those costs; and
c) when they are to be paid.
(2) If the court decides to make an order about costs –
a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
b) the court may make a different order.
…
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
a) the conduct of all the parties;
b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;
b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
…”
In deciding what order, if any, to make about costs the starting point is to identify the winner.
The claimants drew my attention to a useful summary of the relevant cases in the note in the White Book at 44.2.13, including for instance Roache v NGN [1998] EMLR 161. CA. I consider that the claimants are clear winners. They won the issues of joint and several liability and they won over £800,000 in terms of quantum against the two defendants. Dr. Sampson did not realistically suggest to the contrary.
This was not merely a substantial sum but it was also...
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