Nick Dawe v Idg Communications Ltd (Defendant and Part 20 Claimant) Fairfax Media Ltd (Part 20 Defendant)

JurisdictionEngland & Wales
JudgeMr Recorder Richard Meade QC
Judgment Date18 July 2013
Neutral Citation[2013] EWPCC 33
Date18 July 2013
CourtPatents County Court
Docket NumberClaim No: CC12 P 00501

[2013] EWPCC 33

IN THE PATENTS COUNTY COURT

The Rolls Building

7 Rolls Building

Fetter Lane

London EC4A 1NL

Before:

Mr Recorder Richard Meade QC

Claim No: CC12 P 00501

Between:
Nick Dawe
Claimant
and
Idg Communications Limited
Defendant and Part 20 Claimant

and

Fairfax Media Limited
Part 20 Defendant

Approved Judgment

Mr Recorder Richard Meade QC
1

On 20 June 2013 I gave judgment in this action. I dismissed the claim on the basis that the copyrights in issue were assigned to the Defendant or alternatively that it had an exclusive licence. I rejected two other grounds of defence, namely laches and a point under the Sale of Goods Act.

2

There was a Part 20 Claim which petered out during trial in circumstances I describe further below.

3

At the parties' request I gave them time to try to resolve costs by agreement, subject to the back-stop that if they could not agree then they should put in written submissions by 3 July 2013.

4

The parties did not agree. The Defendant and the Part 20 Defendant each put in costs statements and submissions and complied with the deadline of 3 July 2013. The Claimant responded to the Defendant's submissions on 17 July 2013.

5

This is therefore my judgment in writing on the issue of costs, based on submissions on paper and without an oral hearing.

6

I intend to deal with the costs so far as possible on the basis of Section VII of Part 45 of the Civil Procedure Rules. In Westwood v Knight [2011] EWPCC 011 HHJ Birss QC as he then was explained the general approach to their application.

7

In the present case, the parties have not followed those rules or that guidance completely, in particular in that the Part 20 Defendant's costs breakdown does not follow Table A (to some extent this may be because that Table does not specifically provide for Part 20 Claims).

8

In keeping with the observations of HHJ Birss QC in Indigo Furniture Ltd v Futurelook Ltd & Anor [2011] EWPCC 13 it seems to me that it would be wrong actually to disallow costs for this non-compliance, and in view of the small size of the claim it would also be disproportionate to ask the parties to redo or expand their submissions. So I intend to follow the spirit of the rules and guidance, exercising caution not to make any overpayment in doing so.

9

First, I must deal with the question of the overall winner.

10

In relation to the main claim there is no doubt about this: the claim failed and the Defendant is the winner.

11

In relation to the Part 20 Claim the position is more complex. The Defendant bought the business within which the alleged infringement took place from a company related to the Part 20 Defendant (which is an Australian company).

12

The Part 20 Claim was brought as a matter of form as a sort of indemnity. Service of the Part 20 Claim was extremely slow and complicated and, no doubt, expensive.

13

At trial, it appeared that the purpose of the Part 20 Claim was not really to seek an indemnity but to get information from the Part 20 Defendant: the Defendant wanted to try to trace documents relating to the terms on which the Claimant undertook the photographic commission in the course of which the copyright works the subject of the claim were created. This did not succeed, I suspect because the documents were no longer to be found.

14

Against this background, during the argument at trial I asked what the Defendant actually sought to claim from the Part 20 Defendant, and was told that since all possible information now appeared to have been obtained, nothing was claimed. On that basis and to save costs, the Part 20 Defendant's representative left the proceeding.

15

There is now an attempt in the Defendant's costs submissions to argue that while it was not positively claiming anything from the Part 20 Defendant, it maintained a contingent claim in case it lost the main claim. This is clearly not what happened at trial; I was not told that that was the Defendant's position, and had it been then the Part 20 Defendant would not have left.

16

In my view it was not an appropriate use of the Part 20 procedure to pursue the claim for what amounted to third party disclosure and, without going into the extensive detail, I also consider that the Part 20 Defendant would have provided reasonable assistance (albeit probably without great fruit in the end) without being sued.

17

I therefore hold that the Part 20 Claim fails and/or was discontinued and, further, whatever the formal position I...

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