Richard Perry v F H Brundle (a private unlimited company) and Others
| Jurisdiction | England & Wales |
| Judge | Judge Hacon |
| Judgment Date | 02 October 2015 |
| Neutral Citation | [2015] EWHC 2737 (IPEC) |
| Court | Intellectual Property Enterprise Court |
| Docket Number | Case No: IP-2015-000090 |
| Date | 02 October 2015 |
[2015] EWHC 2737 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
His Honour Judge Hacon
Case No: IP-2015-000090
Richard Perry appeared in person
Stuart Baran (instructed by Collyer Bristow LLP) for the Defendants
Hearing date: 25 September 2015
On the afternoon of 25 September 2015 I heard an application by the Defendants in these proceedings to strike out the claim in its entirety or alternatively for summary judgment in the Defendants' favour. The application succeeded and I struck out the claim for reasons given in an ex tempore judgment.
The Defendants also applied for an extended civil restraint order ("CRO") against the Claimant ("Mr Perry") or, by way of a secondary alternative, a limited CRO. I granted an extended CRO and said that I would give my reasons in writing. They now follow.
Mr Perry appeared in person. The Defendants were represented by Mr Baran whose submissions very fairly included points which might have been raised on Mr Perry's behalf had he been represented.
Background
Mr Perry is the proprietor of UK Patent No. 1 390 104 ("the Patent"). The Patent claims a type of fence bracket. In the present proceedings Mr Perry alleges that the Defendants have each infringed the Patent by reason of their dealings in a fence bracket called the 'Nylofor' beam bracket.
The Patent was also at the centre of an earlier action in this court, Case No. CC13P00980 ("the First Action"). In the First Action the current First Defendant ("Brundle") was the claimant. Brundle alleged that Mr Perry had issued unjustified threats of patent infringement. Mr Perry counterclaimed for infringement of the Patent and also brought a Part 20 claim against the Second and Third Claimants in the present proceedings ("Betafence" and "Britannia" respectively) for infringement of the Patent. Mr Perry's complaint of infringement against Brundle, Betafence and Britannia was also concerned with their dealings in the Nylofor beam bracket.
On 6 March 2014 I gave judgment in the First Action. I held that Brundle's claim in relation to threats succeeded and found that Mr Perry's counterclaim and Part 20 claim failed because the Nylofor bracket did not fall within any of the claims of the Patent. Mr Perry appealed. Permission to appeal was refused by Floyd LJ in writing. Mr Perry renewed his application for permission to appeal in an oral hearing before Lewison LJ on 3 February 2015. The application was dismissed. Thus, the finding that Brundle, Betafence and Britannia did not infringe the Patent by reason of their dealings in the Nylofor bracket is now res judicata.
Following my judgment in the First Action I made an order for costs against Mr Perry, totalling a little under £50,000. Mr Perry was unable to pay this sum and on 30 April 2015 Deputy District Judge Giddins made a bankruptcy order against Mr Perry in the Bath County Court.
On 2 June 2015 Hayley Bird, an Examiner in the Official Receiver's Office in Bristol, wrote to this court. Ms Bird is apparently the Insolvency Examiner responsible for Mr Perry's affairs. Mr Perry had informed Ms Bird of the present proceedings and it is clear from the letter that Ms Bird explained to Mr Perry that as receiver and manager of Mr Perry's bankruptcy estate, the cause of action in the present proceedings (if any) vested in the Official Receiver. In other words, Mr Perry had been told that he had no right to take the present proceedings any further.
Mr Perry for a while pursued other lines of litigation. On 2 July 2015 he applied for leave to continue acting as a director notwithstanding his undischarged bankruptcy. The application came before District Judge Britton on 8 July 2015 in Bristol County Court. The District Judge described the application as "almost incomprehensible". It was dismissed and declared to be "entirely devoid of merit".
Mr Perry then applied for permission to appeal against the bankruptcy order which had been made against him. This came before His Honour Judge McCahill QC on 18 September 2015. Judge McCahill stated, possibly with a note of exasperation:
"I have spent at least the equivalent of one day in dealing with and analysing the papers relating to this application for permission to appeal."
Judge McCahill's decision on the application was as follows:
"Permission to appeal is refused on all grounds.
All grounds are totally without merit. They are doomed to fail.
There is no prospect of a successful appeal or any other compelling reason why the appeal should be heard.
Pursuant to CPR 52.3(4A)(a), Mr Perry may not request this decision to be reconsidered at a hearing."
It follows from Judge McCahill's ruling under CPR 52.3(4A)(a) that Mr Perry's route of appeal against the bankruptcy order against him has now been exhausted.
As I have stated, on 25 September 2015 I struck out the present proceedings. This was done on two alternative grounds, either of which would have been sufficient. The first was that any cause of action vested in the Official Receiver, not Mr Perry. The second was that the claim was in any event res judicata. The claim was totally without merit.
Mr Baran submitted that a further flaw in the claim was that it was likely that Mr Perry did not now own the Patent because of his bankruptcy. I am not at all sure about that. However there no reason for me to investigate which assets, aside from the relevant causes of action, have now passed to the Official Receiver and whether they include the Patent.
At the hearing on 25 September 2015 Mr Perry made four applications by means of four undated draft Application Notices sent to the Court by email on 21 September 2015. The first was to add two defendants and a further complaint of "theft" of UK Patent No. 2 401 616 and a complaint of fraud. The second was to amend the (already lengthy) Particulars of Claim "based on new evidence, criminal activity of the defendants and legal advice". The third was to lift the damages cap in these proceedings. The fourth was to add the Defendants' solicitors, Collyer Bristow LLP, as a defendant "for colluding to conceal criminal activity and breach of their practice licence in bringing malicious prosecutions to help other defendants conceal criminal activity."
Aside from other shortcomings in these applications, the short point was that Mr Perry had no cause of action in the proceedings as a whole and was not entitled to make any of the applications. In fact Mr Perry must have understood this when he made them. I dismissed them all and recorded my view that they were totally without merit. Having made that finding and a similar finding with regard to the present proceedings as a whole, pursuant to CPR 23.12(b) I was obliged to consider whether it was appropriate to make a CRO.
Jurisdiction of the IPEC
It is clear that I have jurisdiction to make a limited CRO. The issue is whether there is also jurisdiction to make an extended CRO, which matters for reasons which I will discuss below. Mr Baran submitted that an IPEC judge may grant extended CROs. The provisions in the CPR regarding CROs came into force on 1 October 2004, long before the IPEC was created, so there can have been no express intention in the mind of the draftsman in relation to the IPEC one way or the other.
CPR 3.11 states that a practice direction may set out the circumstances in which a court has power to make a CRO, the procedure which applies and the consequences of such an order. The relevant practice direction is 3C. Paragraph 3.1 of PD3C provides as follows:
" Extended Civil Restraint Orders
3.1 An extended civil restraint order may be made by –
(1) a judge of the Court of Appeal;
(2) a judge of the High Court; or
(3) a Designated Civil Judge or their appointed deputy in the County Court."
The question is whether I am sitting as "a judge of the High Court" in this context. It appears that this term does not refer exclusively to a puisne judge of the High Court within the meaning of s.10(3)(c) of the Senior Courts Act 1981. Extended CROs have been granted by deputy High Court judges, see Courtman v Ludlum [2009] EWHC 2067 (Ch), a judgment of Edward Bartley Jones QC and Supperstone v Hirst [2009] EWHC 1271 (Ch); [2009] 1 W.L.R. 2306, a judgment of Bernard Livesey QC. The former judgment was approved by Birss J in Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch), at [95] to [96]. The authority of those deputy judges was derived from s.9(1) of the Senior Courts Act 1981. To the extent that qualification as "a judge of the High Court" is wholly or partly satisfied if the individual sitting is a judge nominated under s.9(1), I satisfy that criterion.
On the other hand, I must consider whether the limitation imposed by PD3C 3.1(2) also or instead turns on the court in which the application for the CRO is made. As is well known, the IPEC is in practical terms the successor to the Patents County Court ("the PCC"). Setting up the PCC required primary legislation which was enacted in the form of sections 287 to 292 of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"). The PCC was abolished by the repeal of sections 287 to 289 and 291 of the 1988 Act, on 1 October 2013, by reason of section 17(5) and schedule 9(2), paragraph 30, of the Crime and Courts Act 2013 (sections 290 and 292 of the 1988 Act had already been repealed by then). The establishment of the IPEC did not require primary legislation since it was created as a specialist list of the Chancery Division of the High...
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Richard Perry v F H Brundle and Others
...("ECRO") granted by me on 25 September 2015, which expired on 25 March 2017. See the judgment of 2 October 2015, Perry v F H Brundle [2015] EWHC 2737 (IPEC); [2015] B.P.I.R. 1449. Background to Mr Perry's application 3 The present proceedings have their origin in an action brought by the fi......