Reed Executive Plc v Reed Business Information Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Lord Justice Rix,Lord Justice Auld |
| Judgment Date | 14 July 2004 |
| Neutral Citation | [2004] EWCA Civ 887 |
| Docket Number | Case No: A3/2003/0141 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2004 |
[2004] EWCA Civ 887
Lord Justice Auld
Lord Justice Rix
Lord Justice Jacob
Case No: A3/2003/0141
HC 0003439
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE CHANCERY DIVISION
The Hon Mr Justice Pumfrey
Royal Courts of Justice
Strand,
London, WC2A 2LL
Geoffrey Hobbs QC (instructed by Slaughter & May) for the
Respondents/Claimants
Martin Howe QC and Amanda Michaels (instructed by Olswang) for the
Appellants/Defendants
Following our judgment given on 3 March 2004 the parties were unable to agree the consequential order. The principal disagreement was on the question of costs but there were some minor disagreements on other points too.
The Minor Points
The first of these was whether the recital before the operative part of the Order should include a statement to the effect that the Court did not consider a reference to the ECJ necessary. Reed Employment wanted this, but I could not understand why. It is true that the question of whether an own-name defence could apply under Art. 6.1 entered into the debate, but in the end nothing turned on it. Neither side asked for a reference nor did we did rule on the question. I see no point in the recital. It could have no legal effect whatever.
Next there is the form of declaration. Reed Employment's proposal read as follows:
"That prior to 27 th June 2000 the First and Second Defendants have by visibly using the word "reed" on Version 1 of the totaljobs. com website home page and visibly using the Reed Business Information logos containing the word "Reed" on Versions 3 and 4 of the totaljobs. com website home page:
(i) infringed Registered Trade Mark number 1296450: and
(ii) passed off the totaljobs business and services as and for those of the Claimants and the companies represented by the First Claimant herein."
There were two differences in RBI's counter proposal. First the word "visibly" was not in it, and secondly it included the words "but not otherwise". Mr Howe accepted that the addition of "visibly" was appropriate. As regards "but not otherwise" the difference between the parties was not great. Mr Hobbs submitted that the words suggested that the Court had considered some other matter when it had not done so. Mr Howe did not press his point greatly. I think it is appropriate to leave the words out. The order should simply specify the manners in which there was infringement. It need not go on to deal with those that do not.
The third point related to the terms of a stay pending attempts to settle by alternative dispute resolution ("ADR"). It was not in dispute that there should be such a stay. The dispute was as to the scope of any proposed ADR. The present case is only one of a number of proceedings between the parties concerning the word "Reed". There are proceedings in the Trade Mark Registry in the United Kingdom, in the European Trade Mark Office ("the Office for the Harmonisation of the Internal Market") and in at least two Commonwealth jurisdictions. In the end the dispute seemed to be more about the form of words than anything else. It was common ground that this Court could not dictate to the parties the terms, or scope of, any ADR process. Following a suggestion of Rix LJ a form of words which was agreeable to both parties emerged during the course of the hearing. So there was nothing for us to resolve. It is perhaps worth recording that what was agreed includes an agreement that the parties, if they cannot agree upon a mediator, will ask Pumfrey J to appoint one from a panel of ADR Chambers or CEDR (the Centre for Dispute Resolution).
The remaining minor matter relates to the sum of £350,000 paid by RBI to Reed Employment by way of an interim payment of costs pursuant to the order of Pumfrey J. If there is to be an order for repayment of this sum with interest what should the rate of interest be, the statutory judgment rate (currently 8%) or the commercial rate (normally 1% above base rate, but variable on appropriate evidence, Shearson Lehman Hutton v Maclaine Watson (No.2) [1990] 3 All ER 723) ? Base rates have fallen a lot since the judgment rate was last fixed (in 1993 by SI 1993 No.564). So it is RBI who want the judgment rate, and Reed Employment who want the commercial rate.
I think the appropriate rate is the commercial rate. The judgment rate is purely artificial. I can see no reason for an artificial rate being imposed by the court save in those cases where it must, i.e. where there has been a judgment for a sum. Besides, a judgment debtor can avoid paying any interest by paying the debt so it is in a sense, a voluntary rate of interest.
Costs
I turn to costs. The difference between the parties is substantial. Although Reed Employment lost the appeal and, in the ultimate result, achieved only very limited success, Mr Hobbs, subject to a minor (now agreed) point about the evidence of a Mr Roche, suggests it should have 70% of the costs before Pumfrey J and of the appeal. Mr Howe asks for 70% of the costs of the action down to the second judgment of Pumfrey J, and all the of the appeal. This dispute has given rise to two preliminary issues.
The main issue is whether the Court, following judgment on liability can, in relation to the question of costs, compel the parties to disclose the detail of "without prejudice" negotiations. The other issue is whether or not the court's order as to costs should reflect the fact that RBI were not willing to take part in an alternative dispute resolution ("ADR") process after it was proposed by Reed Employment. That issue arises even if disclosure is refused.
The main issue – disclosure for the purposes of costs only—is posed here largely in the context of an allegedly unreasonable refusal to go to ADR, but, I think it is inextricably mixed up also with all other types of "without prejudice" negotiations including those which are and will remain much more common than ADR, namely direct inter-party negotiation, written, oral or a combination of both.
I begin with the Rules, setting out all those which may bear on the problem.
Part 1 The overriding objective
(1) The overriding objective of the CPR is to enable the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable-
(b) saving expense;
(c) dealing with the case in ways which are proportionate:
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) … ;
Application by the court of the overriding objective
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the CPR;
Duty of the Parties
The parties are required to help the court further the overriding objective.
Duty of the court to actively manage cases
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes-
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;"
Part 26 Case Management – Preliminary Stage
(1) A party may, when filing the completed allocation questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.
The allocation questionnaire (Form N150, see PD 2.1) asks:
"Do you wish there to be a one month stay to attempt to settle the claim, either by informal discussion or by ADR?"
Part 44 General Rules about costs
r 44.3 Court's discretion and circumstances to be taken into account when exercising its discretion as to costs
(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 must have regard to all the circumstances, including-
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Part 36). (Part 36 contains further provisions about how the court's discretion is to be exercised where a payment into court or an offer to settle is made under that Part)
(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 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 his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
It is particularly to be observed that there is nothing in these rules which purports to touch the existing law as to "without prejudice" negotiations. By implication at least some of that is assumed to continue – rule 44.3(4) (c) clearly...
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Subject Index
.... . 171Reardon Smith Line Ltd v YngvarHansen-Tangen [1976]1 WLR 989 . . . . . . .233Reed Executive plc v Reed Business InformationLtd [2004] EWCA Civ 887, [2004] 4 All ER 942. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236Roach vR [2011] HC12 . . . . . . . . . . ......
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Table of Cases
...Barrow and another [1991] 2 QB 260, [1991] 3 WLR 368, [1991] 3 All ER 935, CA 214 Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 887, [2004] 1 WLR 3026, [2004] 4 All ER 942, [2005] CP Rep 4 163 Regency Rolls Ltd and Another v Carnall [2000] EWCA Civ 379 247 SPI North Ltd......
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Mediation and Settlement of Small Claims Cases
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