Original Beauty Technology Company Ltd v G4K Fashion Ltd
| Jurisdiction | England & Wales |
| Judge | David Stone |
| Judgment Date | 01 October 2021 |
| Neutral Citation | [2021] EWHC 2632 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No. IL-2018-000105 |
[2021] EWHC 2632 (Ch)
David Stone (sitting as a Deputy Judge of the High Court)
Case No. IL-2018-000105
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
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 24 September 2021, the Defendants seek to vacate the damages inquiry currently listed for five days starting on 25 October 2021. Various other directions are also sought.
On 10 September 2021, I heard the Defendants' application to compel the Claimants (by which I mean the First and Second Claimants, the Third Claimant being in liquidation and not currently playing an active role in proceedings) to answer a Request for Further Information ( RFI). In their counsel's skeleton argument for that hearing, the Defendants said: “Ds' objective is not to adjourn the trial of this inquiry listed for October”. I granted the application in part, and the RFI was duly answered by the Claimants. No complaint is now made about those answers, other than that the Defendants now say that they are unable to prepare properly for the damages inquiry in time, and ask that it be vacated.
Following the service by email of the unstamped application notice, together with a draft order and an 11th witness statement of James Matthew Seadon of the Defendants' solicitors (totalling 73 paragraphs over 17 pages excluding annexures), the parties agreed between them the following process for resolving this application:
(a) The Defendants would not file a skeleton argument but I should take their submissions in chief as being: (a) the Court has the power to make the orders sought, and (b) the Court should exercise its discretion to do so, taking into account the overriding objective and all the matters raised in Mr Seadon's 11th witness statement.
(b) The Claimants would file and serve submissions in reply by 9.30am on Tuesday 28 September 2021.
(c) The Defendants would file any submissions in reply, limited to new points not covered by Mr Seadon's 11th witness statement, by 9pm on Tuesday 28 September 2021.
(d) The application would then be determined by the court on the papers.
(e) The parties would be given an appropriate opportunity to seek permission to appeal the written decision.
Given the timetable, I was asked to deal with the matter as quickly as possible. I therefore circulated these reasons in draft on 30 September 2021.
Background
This is the seventh judgment I have given in these proceedings. The background can be found in the most recent of them, 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 unregistered design rights ( UKUDR) and Community unregistered design rights ( CUDR) in 20 selected garments (the Selected Garments) out of a total of 91 garments, which rights the Claimants said were infringed by the Defendants. That judgment can be found at [2021] EWHC 294 (Ch) (the Main Judgment). I found that seven of the Selected Garments infringed both UKUDR and CUDR, and that 13 infringed neither right. I dismissed the passing off claim. A form of order hearing took place on 1 April 2021, where I made orders for dealing with the remaining 71 garments which had not then been adjudicated. I gave a short ex tempore judgment (which can be found at [2021] EWHC 836 (Ch)) on the Defendants' request for declarations of non-infringement. Also on 1 April 2021, I listed the matter for trial on 6 August 2021 to deal with any of the remaining 71 garments that may still be in dispute. I gave directions to prepare for that trial, together with directions for the Claimants' election of a damages inquiry or account of profits in relation to all infringements. I listed the result of that election to be heard over five days from 25 October 2021. Whilst the Defendants have expressed their concerns with the timetable on a number of occasions, no permission has been sought to appeal the listing decision, and the listing has been known to the parties since 1 April 2021.
An issue arose after the form of order hearing in relation to the various colourways of some of the seven infringing Selected Garments, and I dealt with that in a judgment which can be found at [2021] EWHC 953 (Ch). I dealt with a further issue relating to costs where a Part 36 offer has been made: that judgment can be found at [2021] EWHC 954 (Ch).
Following the Claimants' election of a damages inquiry in relation to the infringing Selected Garments, I heard a CMC on 24 June 2021. I allowed the Claimants to amend their pleadings for the reasons set out at [2021] EWHC 1848 (Ch). I refused permission to appeal, and permission was not requested from the Court of Appeal.
In the end, the additional trial listed for 6 August 2021 was not necessary, because the remaining disputes as to liability were resolved between the parties. The Claimants' Points of Claim were served on 20 August 2021. Points of Defence were served on 7 September 2021. As mentioned above, there was a hearing before me on 10 September 2021 at which I ordered the Claimants to provide responses to the Defendants' RFI dated 24 August 2021: that was duly done on 17 September 2021. Also on 10 September 2021, I refused the Defendants' request to institute the disclosure pilot and refused most of the Defendants' requests for specific disclosure. The Defendants have said that they do not intend to seek from me permission to appeal that decision but that they are in the process of approaching the Court of Appeal for permission. Factual witness statements were due to have been served on 24 September 2021, but service has not yet been effected.
This Application
On 22 September 2021, the Defendants wrote to the Claimants seeking consent to vacation of the damages inquiry and amendments to the timetable, which the Claimants refused. The Defendants then issued this application on 24 September 2021, seeking orders:
(a) adjourning the damages inquiry;
(b) allowing the Defendants to file an Amended Defence;
(c) extending the deadlines for a Reply, fact evidence and expert evidence; and
(d) granting permission to apply for still further disclosure arising from the Claimants' disclosure and RFI responses given pursuant to my order of 10 September 2021 and again following any Reply.
The Law
The parties agreed on the applicable law. The adjournment of a trial whose date has already been fixed is “a last resort” (White Book at 29.5.1). The approach to be taken was explained by Coulson J (as he then was) in Fitzroy Robinson Limited v Mentmore Towers Limited [2009] EWHC 3070 (TCC):
“8. What are the relevant principles governing an application of this kind? It seems to me that the starting point is the overriding objective ( CPR Part 1.1), the notes in the White Book at paragraph 3.1.3, and the decision of the Court of Appeal in Boyd and Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516. Thus, the court must ensure that the parties are on an equal footing; that the case — in particular, here, the quantum trial — is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the court's resources is allotted, taking into account the need to allot resources to other cases.
9. 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 Defendants' Basis for the Application
The Defendants' counsel set out the basis for the adjournment application as follows:
“The late provision by Cs of a properly particularised case in this damages inquiry and the late provision of documents relied on, all of which could and should have been provided on 20 August 2021, has the consequences that (a) Ds need to serve an Amended Defence and (b) extensions are necessary to the deadlines for service of fact and expert evidence. … the knock-on impact of the trial timetable makes an adjournment of the trial unavoidable.”
The Claimants reject this submission. They submitted that at the time of the request for answers to the RFI, there was no suggestion that the damages inquiry would need to be vacated – indeed, they referred to the Defendants' skeleton argument in which the Defendants asserted that their “objective is not to adjourn the trial of this inquiry listed for October”. The Claimants submitted that the Defendants requested further...
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