Tracto Teknik GMBH and another v LKL International Pty Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pumfrey |
| Judgment Date | 22 May 2003 |
| Neutral Citation | [2003] EWHC 1563 (Ch) |
| Court | Chancery Division |
| Docket Number | No: HC01 C01628 |
| Date | 22 May 2003 |
[2003] EWHC 1563 (Ch)
Mr Justice Pumfrey
In The Matter Of:
No: HC01 C01628
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Patents court)
MR M VANHEGAN instructed by Messrs Greenwoods, appeared on behalf of the claimant
MR NEIL LIEVESLEY (in person) appeared on behalf of the defendants.
The first matter which I must deal with today is the question of representation of the parties. In outline, the position is as follows. This is a patent action. The subject matter of the patent is a particular construction of subterranean mole. The first defendant, an Australian company, is a manufacturer and supplier to the second defendant, which is its distributor in Europe of moles. These moles are said to infringe the claimant's patent, and this being a European patent is in litigation both in the United Kingdom and in Germany. In Germany injunctive relief has already been obtained against the defendants, that is to say the second defendant here, and that injunction is being appealed.
The injunction was, of course, granted in the context of proceedings where the only issue was infringement since validity, as is well known, is tried separately in Germany. The defendants have instituted a nullity suit in Germany, which has yet to be heard. There is no doubt that the first and second defendants are in a poor financial position. The second defendant is out of time for a return and has obtained an extension but his last file of return now with some antiquity shows a company which is balance sheet insolvent.
The low level of cash revealed by the abbreviated balance sheet is not encouraging from the point of view of trying to decide whether the company is capable of meeting its obligations as and when they fall due, but I was told by Mr Lievesley, who seeks to represent all the defendants in the present case and is and always has been an employee of the second defendant, that the second defendant owes its solicitors some £4,000 and does not have the money to pay them, although he hopes that by the end of next month he will have raised the money and be able to obtain the documents over which the solicitors are presently exercising a lien.
The position of the other active defendants, that is to say the 4 th, 5 th and 6 th defendant, each of which are members of the Elswood(?) Record group of companies, is quite different. The annual returns for those companies, so far as produced to me, show companies which are in a healthy way of business and appear to be more than capable of paying the costs of litigation. No doubt they are unwilling to do so and they have obtained a comprehensive indemnity from the first two defendants and the first defendant's principal shareholder in relation to the costs and damages of these proceedings.
Of course, the indemnity provides that the first and second defendants, to all intents and purposes, run the litigation but the fourth, fifth and sixth defendants have a solicitor on the record whom Mr Lievesley says he has contact for the purposes of such...
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