Utopia Tableware Ltd v Bbp Marketing Ltd and Another

JurisdictionEngland & Wales
JudgeMr Justice Birss
Judgment Date30 May 2013
Neutral Citation[2013] EWPCC 28
CourtPatents County Court
Date30 May 2013
Docket NumberCase No: CC12P4833

[2013] EWPCC 28

IN THE PATENTS COUNTY COURT

Rolls Building

7 Rolls Buildings

Fetter Lane

London EC4A 1NL

Before:

Mr Justice Birss

(Sitting as a judge of the Patents County Court)

Case No: CC12P4833

Between:
Utopia Tableware Limited
Claimant
and
(1) Bbp Marketing Limited
(2) The British Bung Manufacturing Company Limited
Defendants

Michael Edenborough QC and Thomas St Quintin (instructed by Fasken Martineau) for the Claimant

Robert Onslow (instructed by Baxter Caulfield) for the Defendants

Hearing date: 1st May 2013

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Birss
1

This action concerns a claim for infringement of design rights relating to beer glasses. The claimant claims that the defendants have infringed its UK registered design No 4021276 and certain unregistered UK design rights. The claimant's rights all relate to a beer glass design called Aspen. The defendants sell a beer glass made of polycarbonate known as Aspire. The Aspire design is a copy of the Aspen and the claimant believes it is an infringement of the rights referred to.

2

When the action began the claimant sought an interim injunction against the defendants to stop sales of the Aspire. On 18 th December 2012 the application came before me. Both sides were represented. At that stage the defendants wished to have more time to present their evidence. I granted an injunction over until 21 st January 2013. My judgment on that occasion is [2012] EWPCC 58. On 21 st January 2013 I heard the application, the defendants now having had a chance to put in all the evidence they wished. I granted the injunction over to a trial. That judgment is [2013] EWPCC 15. The trial is fixed for 24 th September 2013.

3

In early April two individuals who had given witness statements (signed with statements of truth) which were used at the earlier hearings admitted that the evidence they had given was deliberately fabricated to mislead the court in order to advance the claimant's interests and that they had conspired together to present false evidence and to lie in their witness statements. False emails had been created and presented to the court as genuine. The two individuals were Mr Stephen Dodd a director of the claimant (Utopia) and Mr Thomas Core, the sales director of Utopia. The circumstances are set out fully in a Fifth Witness Statement of Stephen Dodd dated 5 th April 2013, a Second Witness Statement of Thomas Core dated 5 th April 2013 and two witness statements of the claimant's solicitor Ralph Cox of the firm Fasken Martineau. There is no suggestion that Mr Cox was involved in the matter.

4

The defendants submitted that, pursuant to CPR r81.18(5), the court should direct that the matter be referred to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court. I decided not to resolve that question on paper but to hear the parties. This is my judgment having done so.

Can this court refer?

5

Mr Edenborough QC, who appeared for the claimant on this occasion, but who had not appeared before, submitted as a preliminary matter that this court, that is to say a county court, had no power under r81.18 to direct that the matter be referred to the Attorney General. In making this submission Mr Edenborough was not seeking to derail the application. He was, entirely properly, seeking to ensure that the matter was dealt with in the proper way. When I heard the application I was the presiding judge of the Patents County Court (a specialist circuit judge) although I have since been appointed to the High Court. Mr Edenborough suggested that if the submission was right, I should sit as a section 9 judge of the High Court to hear the application.

6

Mr Edenborough's point was as follows. CPR r81.18 is in part 6 of Part 81 of the CPR. Part 81 concerns contempt of court and Part 6 concerns committal for making a false statement of truth or disclosure statement. It was common ground that the contempts in question are classed as criminal contempts. That does not mean they are dealt with in the criminal courts.

7

Rule 81.18 is as follows.

Committal application in relation to a false statement of truth or disclosure statement

81.18 (1) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only –

(a) with the permission of the court dealing with the proceedings in which the false statement or disclosure statement was made; or

(b) by the Attorney General.

(2) Where permission is required under paragraph (1)(a), rule 81.14 applies as if the reference in that rule to a Part 8 claim form were a reference to a Part 23 application notice and the references to the claim form were references to the Part 23 application notice.

(3) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in a county court may be made only –

(a) with the permission of a single judge of the Queen's Bench Division; or

(b) by the Attorney General.

(4) Where permission is required under paragraph (3)(a) rule 81.14 applies without the modifications referred to in paragraph (2).

(Under rule 81.14(6)(b), the court granting permission may direct that the application be listed for hearing before a single judge or a Divisional Court.)

(5) The court may direct that the matter be referred to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court.

(6) Where the committal application is made by the Attorney General, the application may be made to a single judge or a Divisional Court of the Queen's Bench Division.

8

Paragraphs 5.1 to 5.7 of the Practice Direction also relate to rule 81.18. The material paragraphs of the Practice Direction are:

Committal application in relation to a false statement of truth or disclosure statement — Rule 81.18

5.1 Rules 81.18(1)(b) and 81.18(3)(b) provide that a committal application may be made by the Attorney General. However, the Attorney General prefers a request that comes from the court to one made direct by a party to the proceedings in which the alleged contempt occurred without prior consideration by the court. A request to the Attorney General is not a way of appealing against, or reviewing, the decision of the judge.

[ … ]

5.4 A request to the Attorney General to consider whether to bring proceedings for contempt of court must be made in writing and sent to the Attorney General's Office at 20 Victoria Street, London, SW1H 0NF.

5.5

A request to the Attorney General must be accompanied by a copy of any order directing that the matter be referred to the Attorney General and must –

(1) identify the statement said to be false;

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

[…]

5.7

The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.

9

Considering the rule, it can be seen that r81.18(1) concerns a committal application in relation to a false statement made in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal whereas r81.18(3) relates to a committal application in relation to a false statement made in a county court. In either case the application may be made by the Attorney General. In the High Court (etc.) the application may also be made with permission of the court dealing with the relevant proceedings, whereas in relation proceedings in a county court, if the Attorney General is not making the application, the permission of a single judge of the Queen's Bench Division is needed. The county court in question cannot give permission to a party to make such a committal application.

10

Rule 81.18(5) provides that the court may direct that the matter be referred to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court. This is the rule the defendants seek to invoke. Mr Edenborough's submission is focussed on this rule. The question is: which court is "the court" referred to in the rule? In a case relating to a county court, does it refer to the county court or to the High Court?

11

From a linguistic point of view Mr Edenborough's point is that when one looks back in r81.18 to rule (1) it is plain that "the court" means the court dealing with the proceedings since only that court is referred to. However when one looks back to r81.18(3) two courts are referred to, the county court in which the relevant proceedings took place and the single judge of the Queen's Bench Division who may give permission to bring an application. Mr Edenborough submitted that as a matter of policy, once one understands that the county court has no jurisdiction to deal with criminal contempts and that r81.18 is designed to ensure that permission to bring a committal application in relation to such proceedings has to come from the Queen's Bench Division, the word "court" in sub-rule (5) must, in the context of sub-rule (3) mean the Queens Bench Division or at least the High Court. The requirement for permission is intended to act as a gateway to regulate the bringing of such committal applications and the gateway task, in relation to the county court, has been allocated to...

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1 cases
  • Utopia Tableware Ltd v BBP Marketing Ltd and Another
    • United Kingdom
    • Intellectual Property Enterprise Court
    • 12 Noviembre 2013
    ...proceedings for contempt of court. On 1 st May 2013, HHJ Birss QC made the order sought by the Defendants. His judgment is reported at [2013] EWPCC 28. The Judge expressly accepted the Defendants' allegation that Mr Dodd and Mr Core were the lead conspirators in a conspiracy to present a fa......

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