Sevcon Ltd v Lucas CAV Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Fraser of Tullybelton,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Goff of Chieveley |
| Judgment Date | 17 April 1986 |
| Judgment citation (vLex) | [1986] UKHL J0417-2 |
| Date | 17 April 1986 |
| Court | House of Lords |
[1986] UKHL J0417-2
Lord Keith of Kinkel
Lord Fraser of Tullybelton
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Goff of Chieveley
House of Lords
My Lords,
My noble and learned friend Lord Mackay of Clashfern will deliver a speech setting out the reasons why, in his opinion, this appeal should be dismissed. I agree with it, and for the reasons he gives would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Mackay of Clashfern, and I agree with it entirely. For the reasons stated in it, I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mackay of Clashfern. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
On 14 June 1967 Letters Patent were applied for in respect of improvements in static switching controllers for effecting repetitive connection to and disconnection from a load of a d.c. source, the circuit of the load and the source possessing inductance. The complete specification was filed on 7 June 1968 and was published on 7 April 1971. Opposition proceedings followed after which application was made to the comptroller for amendment of the specification and amendment was allowed by the comptroller on 26 October 1981. The letters patents were sealed on 6 October 1982 but they were dated and "made patent as of the seventh day of June" 1968. On 21 February 1984 the writ in this action was issued complaining of acts of infringement of this patent by the respondents between 1974 and 1977.
The respondents sought dismissal of the action relying on the provisions of section 2 of the Limitation Act 1980. The respondents' submission was accepted by Falconer J. who on 9 November 1984 dismissed the action. The Court of Appeal, by order dated 24 May 1985, affirmed that decision and this appeal is brought to your Lordships' House by leave given on 25 July 1985.
Section 2 of the Limitation Act 1980 ("the Limitation Act") is in these terms: "An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
It is accepted by the appellants in this appeal that their action is an action founded on tort and it is not suggested by them that any of the provisions of the Limitation Act which create exceptions from the operation of section 2 apply in this case although they submit that policy considerations to be derived from the existence of these exceptions are relevant here. The dispute between the parties accordingly is whether the cause of action in this case accrued when the acts of alleged infringement were committed subsequent to the publication of the complete specification on 7 April 1971 but before grant of the letters patent as the respondents contend and as has been held by the judge and by the Court of Appeal [1985] E.S.R. 545, or when the Letters Patent were granted on 6 October 1982, as the appellants contend.
The first question to be considered is what is meant by the phrase "the cause of action accrued." Both parties founded upon the decision in Coburn v. Coliedge [1897] 1 Q.B. 702, which was decided under the Limitation Act 1623, section 3, which provided that all actions of, inter alia, debt grounded upon any lending or contract without specialty were to be commenced within six years "next after the cause of such actions." Lord Esher M.R., at p. 706 gave as the definition of "cause of action" "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court."
This definition was agreed to by the other members of the Court of Appeal. The result of the application of this definition was that a solicitor's cause of action for payment for work done arose as soon as the work was finished although there was a statutory provision that he could not commence or maintain any action for the recovery of his fees until the expiration of one month after he had delivered to the party to be charged a bill for the fees. It was held that the statutory provision to which I have just referred did not affect the cause of action which the solicitor had but only the remedy for enforcing it.
This definition was used in this House in Central Electricity Generating Board v. Halifax Corporation [1963] A.C. 785 in which the board sued for property held by Halifax Corporation which the board claimed had been held by the corporation as authorised electricity undertakers on the vesting date 1 April 1948. The board's right to the property in question depended upon whether or not the property was so held and the decision whether it was so held or not was referred to the Minister under section 15(3) of the Electricity Act 1947. The Minister decided this question in favour of the board on 18 September 1958, and on 6 March 1959 the board commenced an action for the property which the House held to be statute barred. In rejecting the argument for the Board that the cause of action accrued on 18 September 1958, Lord Reid said, at p. 801:
"No new right or liability came into existence [at that date] It is quite clear, and it is now admitted by the appellants, that the effect of the Minister's decision was merely to prove that this sum had belonged to the appellants ever since the vesting date. It created no new right of property or chose in action: it merely enabled a pre-existing right to be enforced."
Lord Guest, at p. 806, put the matter thus:
"In my opinion, on vesting date, the appellants would have been able to issue a writ containing a statement of claim, claiming payment of the money, which statement would not have been struck out as disclosing no cause of action."
I turn now to consider how this definition is to be applied to the circumstances of the present appeal. Parties are agreed that the relevant statutory provisions are those of the Patents Act 1949.
The principal provision in issue is section 13(4) of the Act of 1949 which is in these terms:
"After the date of the publication of a complete specification and until the sealing of a patent in respect thereof, the applicant shall have the like privileges and rights as if a patent for the invention had been sealed on the date of the publication of the complete specification:
Provided that an applicant shall not be entitled to institute any proceedings for infringement until the patent has been sealed."
Section 19(1) provides:
"Subject to the provisions of this Act with respect to opposition, and to any other power of the comptroller to refuse the grant, a patent sealed with the seal of the Patent Office shall, if the prescribed request is made within the time allowed under this section, be granted to the applicant…."
This must be read in conjunction with section 102(1) which provides:
"Nothing in this Act shall take away, abridge or prejudicially affect the prerogative of the Crown in relation to the granting of letters patent or to the withholding of a grant thereof."
Section 22(1) provides:
"Every patent shall be dated with the date of filing of the complete specification:
Provided that no proceeding shall be taken in respect of an infringement committed before the date of the publication of the complete specification."
Section 65 provides a remedy for groundless threats of infringement proceedings but section 65(2) affords a defence if the acts
"in respect of which proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising...
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