Scherer v Counting Instruments Ltd (Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY |
| Judgment Date | 28 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0728-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1972 S No. 1511 |
| Date | 28 July 1977 |
[1977] EWCA Civ J0728-1
Lord Justice Buckley
Lord Justice Bridge and
Lord Justice Cumming-Bruce (not present for judgment)
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Chancery Division
Group A
(Mr. Justice Whitford)
MR. S. GRATWICK Q.C. and MR. G.D. PATERSON (instructed by Messrs. Bird & Bird, Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. R. JACOB (instructed by Messrs. Herbert Smith, Solicitors, London) appeared on behalf of the Defendants (Respondents).
The judgment I am about to read is the judgment of the court.
This is an appeal from an order of Mr. Justice Whitford dated 18th March 1977 and made in two actions whereby he declined to dismiss the actions for want of prosecution but ordered that the plaintiffs, who were successful on that issue, should pay the costs of the defendants of the two motions. The plaintiffs appeal against the learned judge's order as to costs.
The plaintiffs are the proprietors of two patents relating to devices for the automatic supply of and accounting for petrol from petrol pumps by use of a credit card operating by electronic means. The first of these patents was granted in March 1972. The writ in the first action was issued on 20th March 1972 and claimed relief in respect of alleged infringements of the patent and of alleged misuse of confidential information, breach of contract, infringement of copyright and conversion or detention of apparatus and drawings alleged to be made in infringement of copyright. The pleadings in that action are now closed save that the plaintiffs are seeking further and better particulars of objections from the defendants.
The second patent was granted in September 1974 and the writ in the second action was issued on 19th November 1974. It claims relief in respect of alleged infringements of the second patent. On account apparently of an oversight by the plaintiffs' solicitors the statement of claim in the second action has not yet been formally delivered.
From a date in January 1975 until July 1976 no progress was made in either action. On 28th July 1976 the plaintiffs' solicitors wrote to the defendants' solicitors a letter in the following terms (correspondence, page 77). "Re: Scherer v. Counting Instruments Ltd; Patent No. 1,008,942. We are writingto confirm that it is our clients intention only to pursue his claim for infringement of patent and we shall shortly be applying to the Court to make suitable amendments to our pleadings. In preparing this case for trial it appears to us to be essential to have an agreed statement setting out the construction and mode of operation of your clients 'FFM Mark III' and 'Twenty Counter FFM Series II', (keyboard type). As your clients have this information and all the necessary drawings we suggest that your clients should prepare such a statement for agreement by our client. This statement could conveniently also deal with the Plaintiff's request for Further and Better Particulars dated the 15th of May 1974. We also serve you herewith with a Notice of Intention to Proceed. We would be grateful if you will acknowledge receipt of this letter and the documents served herewith".
There were enclosed with that letter a copy of the plaintiffs' statement of claim in the second action and notices to proceed in both actions. The notice to proceed in the first action stated that the plaintiffs intended at the expiration of one month from service thereof to take out a summons for further directions. In the notice to proceed in the second action the plaintiffs stated that they intended at the expiration of one month from the service thereof to take out a summons for time to serve their statement of claim and particulars of infringements. The defendants' solicitors replied to the letter of 28th July 1976 on 2nd August 1976 in the following terms (correspondence page 78): "Thank you for your letters of 28th July in these matters. We are not prepared to accept service of any of the documents sent with your letters and we propose to apply to the Court to strike out both actions for want of prosecution".
The defendants did not however serve the notices of motionfor the dismissal of the two actions until November 1976. On 3rd December 1976 the plaintiffs served notice of a motion in the first action for an order that the defendants should deliver further and better particulars of objections. On the same day they moved in the second action for an order extending their time for delivery of statement of claim in that action. We think that these motions all came before the learned judge at the same time on 18th March 1977, but we are only concerned with the two motions for dismissa1. Three days before the hearing, on 15th March 1977, the plaintiffs' solicitors wrote a letter to the defendants' solicitors in which they said: "We are writing to place on record the suggestion which was made to you informally a week ago that in the light of the evidence which has now been filed, this may not be a case in which dismissal for want of prosecution is warranted, and that costs could usefully be saved if the Hearing on Friday 18th March were confined to seeking an order laying down a timetable for the future conduct of these actions. We enclose a copy of the timetable which we propose and we suggest that it is still not too late for your clients to agree to our proposal and to agree that the costs of the present motions should be costs in the cause".
Of the first action the learned judge in his judgment said: "I think that a delay, if it is to be taken at 18 months or a little bit more, in relation to an action of this character and having regard to the material at the time of the last exchange of correspondence which was at hand which would have to be considered by the parties of both sides, if it is inordinate, is only just verging upon the inordinate. I think there is at least some excuse for the relatively small amount of movement towards a hearing of the proceeding which then ensued; but the moreimportant question to be considered, to my mind, is the question as to whether or not, as a result of these delays, the defendants have been seriously prejudiced".
He then proceeded to consider the question of prejudice and reached the following conclusion: "The case, to my mind, is one in which, taking all the factors which have been put forward on the defendants' side in consideration, it cannot be said that any prejudice as has been occasioned is of such a nature that, taking into consideration the other relevant factors, there ought to be an order dismissing the first action in so far as it is concerned with infringement of letters patent upon the ground of undue delay. There may be prejudice, but, in so far as there is prejudice, much of it is not, to my mind, really attributable to such delay as has been occasioned by the standstill of 18 months to which reference has already been made".
These findings can be summarised by saying that the defendants had not successfully established inordinate delay or inexcusable delay or any relevant prejudice to themselves.
Of the second action the learned judge said: "It cannot really be said (save only that it is always prejudicial to have not one action but two actions brought against you) that any particular prejudice can be pointed to by reason of the failure to serve this particular statement of claim; and in consequence, although I think such a delay as occurred in this particular instance was both inordinate and inexcusable, having regard to the fact that it does not really seem to me that it has resulted in any prejudice to the plaintiffs, it would not be right that the second action either should be brought to an end".
The plaintiffs were not in default in respect of the first action under any rule of court or under any order made in the action. As long ago as 20th December 1973 Mr. Justice Whitfordhad made an order on the summons for directions in that action which contained directions as to discovery and so forth and ordered that either the plaintiffs or the defendants should be at liberty at any time after 21 days from the completion of all acts so provided for, or the expiration of the latest of all times limited for such acts, to set the action down for tria1. It would have been open to the defendants under this order to set the action down, if they had been anxious that it should be brought on. In the second action the plaintiffs were in default in serving their statement of claim in due time.
The learned judge's order contained a recital that the plaintiffs abandoned all claims in the first action save as to infringement of the first patent and dismissed that action with costs so far as it related to the abandoned claims. The plaintiffs were given leave to amend their pleadings. Otherwise the learned judge made no order on the motions to dismiss except the order for costs which is complained of.
The judge was not asked for, and did not give, leave to appeal as to costs. Under the Supreme Court of Judicature (Consolidation) Act 1925 section 50 costs are in the discretion of the court or judge, and by section 31 (1) (h) of the Act it is provided that "no appeal shall lie without the leave of the court or judge making the order from an order of the High Court or any judge thereof made with the consent of the parties or as to costs only which by law are left in the discretion of the court". So if a judge has made an order for costs having material before him upon which he could exercise his discretion in that way, this court cannot interfere...
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