For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Saturday, 1 June 2013

Design right cases at the Patents County Court get interesting with referral for criminal contempt proceedings

Merpel was perusing the slightly more obscure section of the BAILII website dealing with decisions of the Patents County Court, and she nearly choked on her cornflakes when she read, in the case of Utopia Tableware Ltd v BBP Marketing Ltd & The British Bung Manufacturing Company Limited [2013] EWPCC 28 (30 May 2013) “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”. Criminal contempt of court proceedings? In an IP case? In the Patents County Court? What could possibly have occurred?

Well, according to Birss J (as he now is – he was HH Judge Birss when the matter began):

"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 5th April 2013, a Second Witness Statement of Thomas Core dated 5th 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."

An interim injunction had been granted on the basis of this evidence. That injunction had subsequently been continued albeit by the time the matter came back to Court on the second occasion the defendants had admitted copying the claimants’ product and the claimants had indicated to the court that they no longer relied upon the evidence in issue. Messrs Dodd and Core sought to dissuade Birss J from referring the matter to the Attorney General on the basis that “the contempt was not of the most serious nature.” They argued inter alia:-

  • The fact that the injunction had been continued without reliance on the evidence in question showed that it was not material to the decision to grant the injunction in the first place; [queries Merpel, is that not tantamount to saying that it was only a little lie?]
  • That they had “come clean” and that credit should be given for their early confession. 
  • That a referral would be disproportionate and would not result in an appropriate allocation of the Court’s resources. 

Birss J was wholly unimpressed with those submissions and with the conduct of the two gentlemen in general. He stated:
"I reject the submission that the admitted contempt was not serious. Signing false witness statements, repeating the lie in further false statements, conspiring to present false evidence and tampering with the dates of the emails amount to a serious contempt. The fact that it is in the context of a small case in the Patents County Court is not relevant.”
He went on:
“it seems to me that there are good reasons … why contempt proceedings could be appropriate in the light of in the light of the overriding objective in Part 1. Whether to bring them or not is a matter for the Attorney General and I will direct that this matter is referred to the Attorney General's Office”

There was some discussion as to whether the PCC was permitted to make such a referral to the AG’s office (or whether it needed to be made by the Queen’s Bench Division), but Birss J decided that he had such power, and then proceeded to exercise it.

So says Merpel let that be a lesson to you. Lies will get you into trouble, even if they are “little lies” made in the context of “small claims”.

3 comments:

Anonymous said...

This seems the right result - evidence is supposed to be, well, evidence - you can't just make something up.

That said, I'm slightly puzzled as to the exact offence. I thought that contempt of court meant either actually not giving the court the proper respect, or else going against the court's instructions in some way, such as breaking an injunction or publishing details that you're not supposed to. I thought lying to the court was perjury; and that there was also an offence of "perverting the course of justice" that was something along the same lines. Could anyone give a brief guide?

Andy J said...

anon @22:55 2 June
Contempt is entirely appropriate for acts of this kind. Birss J will have been well aware that Civil Procedure Rules part 81, para 17 specifically deals with "making [...] a false statement in a document verified by a statement of truth".
While this wording is somewhat similar to the ingredients for a charge of perjury, and the behaviour could also seriously impede the administration of justice I suspect it was the judge's familiarity with the civil side of the law and the fact that that this occured within the precincts of the High Court rather than a criminal court, which prompted him to take this course.
My understanding is that contempt proceedings under CPR 81 would allow the court dealing with the underlying case to also deal with the contempt, thus saving the need for a separate (criminal) prosecution which would be required for either perjury or perverting the course of justice. That said, a contempt of this nature would be a criminal contempt as the judge explained at [6].

Anonymous said...

Thanks for your comments Andy.

On a related point (and perhaps drifting away from IP, though I don't frequent any more suitable blogs) - there's a story on the BBC website about the trial of a teacher who is accused of running off to France with a pupil. The story says that the girl cannot be named. Whereas if I remember correctly the girl's name and photo were all over the media at the time, and indeed the couple were caught when someone recognised them from seeing them in the paper. Surely this is a case of locking the stable door well after the horse has bolted?

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':