Original Beauty Technology Company Ltd v G4K Fashion Ltd
| Jurisdiction | England & Wales |
| Judge | David Stone |
| Judgment Date | 15 October 2021 |
| Neutral Citation | [2021] EWHC 2748 (Ch) |
| Docket Number | Case No.IL-2018-000105 |
| Court | Chancery Division |
[2021] EWHC 2748 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Royal Courts of Justice,
Rolls Building Fetter Lane, London, EC4A 1NL
David Stone
(sitting as a Deputy Judge of the High Court)
Case No.IL-2018-000105
Ms Anna Edwards-Stuart and Mr David Ivison (instructed by Mono Law Limited) for the First and Second Claimants
Mr Chris Aikens (instructed by Fieldfisher) for the Defendants
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
David Stone (sitting as a Deputy Judge of the High Court):
By application notice dated 4 October 2021, the Defendants sought specific disclosure of various documents, pursuant to permission I had previously granted. The application was served without notice of its contents. However, the parties were able to reach a compromise on many of the requests, so that by 13 October 2021, only three requests remained. They are that:
“The First and Second Claimants shall, by 6 October 2021, disclose the following categories of documents in the First and Second Claimants' control:
…
(c) Sample invoice for the purchase of fabrics used to manufacture garment C27;
…
(d) Sample invoice for the purchase of accessories used to manufacture garment C27; and
…
(f) Size chart for garment C27.”
For the purposes of these proceedings, the Claimants' garments which they alleged were infringed were each given a number, preceded by the letter C. The Defendants' allegedly infringing garments were given the corresponding number, preceded by the letter D. I should also add for clarity that when I refer to the Claimants, I mean the First and Second Claimants, the Third Claimant being in liquidation and playing no active role in the proceedings.
Since this application was filed, the Defendants have clarified in correspondence that:
(a) by “sample” they meant in each case “example”; and
(b) by “size chart” they meant “consumption chart”.
The application was supported by a 33 paragraph witness statement of Thomas McKenna of the Defendants' legal team. Mr McKenna set out the Defendants' reasons for the request to disclose sample invoices for garment C27 – namely, that the unit cost identified for this garment (£6.10) was considered by the Defendants to be “unrealistically low”. He said in his witness statement:
“The Defendants therefore request the documents listed above in order to be able to properly scrutinise the costs the Claimants associate with this garment. … To be clear, in line with the Court's clear guidance, the Defendants have limited this request to just one garment and have identified specific requests so as to make it straightforward and inexpensive for the Claimants to comply with it.”
After receipt of the application notice and draft order, the Claimants explained to the Defendants that they do not have the three requested documents because garment C27 was manufactured by a third party and the Claimants did not purchase the fabric or accessories directly.
The Defendants therefore wrote to me on 12 October 2021 setting out the history, and purporting to amend their disclosure application as follows:
“The right course is therefore for the Court to order as follows:
1. The Claimants shall, within 24 hours, confirm which of the Claimants' Garments were made in the Claimants' own factories and therefore for which of the Claimants' Garments the Claimants are in control of fabric and accessory invoices and consumption charts.
2. Within 24 hours of receipt of that information, the Defendants shall identify one example garment in relation to which one example each of (i) fabric invoice (ii) accessory invoice and (iii) consumption chart should be disclosed.”
The damages inquiry in this matter starts on 25 October 2021. Given the timetable, I dealt with this matter as quickly as possible, and circulated these draft reasons late in the evening on the day on which I received the Claimants' written submissions in response to the newly formulated application. Neither side requested a hearing.
Background
The background to these proceedings can be found in my judgment dated 10 September 2021, at [2021] EWHC 2555 (Ch). Relevantly for this application, it is sufficient to note the following points. After a trial over eight days, on 24 February 2021 I gave judgment in relation to the alleged infringement of UK...
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Original Beauty Technology Company Ltd v G4K Fashion Ltd
...appeal. 9 On 15 October 2021, I refused the Defendants' application for specific disclosure in relation to this damages inquiry: see [2021] EWHC 2748 (Ch). 10 The inquiry was heard remotely at the request of the parties, over five days. The parties used the CaseLines database so that docum......