Today has been one of those English spring days where the warmth of the approaching summer is starting to sneak into an otherwise dull and oppressive London sky, but the truth of the matter is that it's still worth snuggling up against the nearest available radiator It's also more than somewhat damp, as any Kat whose paws have touched the pavement can confidently verify.
Back in March, the IPKat reported on that rarest of cases -- a groundless threats action -- successfully brought against Richard Perry by one F H Brundle. Mr Brundle [remember that lovely word, a cross between 'bundle' and 'trundle'?] was also successful in relation to Mr Perry's counterclaim for patent infringement. Given Brundle's success, the company was duly entitled to an award of costs. Because Brundle's claim form was dated 12 March 2013, before the new scale costs applied on 1 October 2013, the judge held that it would be the old scale costs that would apply, notwithstanding that, in December 2013, Mr Perry's counterclaim for infringement was dated after 1 October 2013, in December 2013. On this basis the court would respect the legitimate expectations of the parties when Brundle commenced its action. Judge Hacon then said he would award Brundle £34,525, including £15,000 for preparation and attending trial and judgment.
|If the cap fits,|
wear it ...
Then things got worse. On 26 March 2014, Mr Perry sent an email to Judge Hacon's clerk, the parties' solicitors and counsel. In that email, Mr Perry stated that he had received a letter purported to come from Judge Hacon himself. The text of that email was as follows:
The judge stated that there was no evidence that Mr Perry's name had ever appeared on Brundle's purchase orders and that, in any event, it would make no difference. As regards the forgery, the judge stated, in that very restrained and understated way in which English judges express emotion:
Royal Courts of Justice
Patents County CourtRolls Building, Fetter LaneLondonsales@hmcts.fasteners.co.uk
26th March 2014Claim CC13P00980Dear Mr Perry,
I have re-considered the case CC13P00980 and upon reflection; your opponents (FH Brundle, Betafence and Britannia Fasteners) having used your name on purchase orders for the infringing goods protected under your patent (which seems to be a fundamental point in the case), have colluded to defraud you of substantial sums of profits you were rightfully entitled to and therefore I have reversed my decision in your favour and award £5,000,000.00 in damages that would settle the claim in full.
I apologise that I did not even question your opponents on this issue or the matters concerning the manipulation of design sheets and copyright dates as at the time I didn’t think it was all that relevant.
I order the claimants and counter defendants to pay the claim in full within 14 days and the claim for unjustified threats is dismissed.
Mr Justice Hacon”
... the best that can be said about this purported letter is that for several reasons no one would take it seriously... A deliberate attempt to influence others by means of a forged letter from a judge would be an extremely serious matter. I think the purported letter circulated by Mr Perry, to my clerk among others, is better characterised as a further example of Mr Perry’s intemperate and eccentric behaviour in the conduct of these proceedings. The question I have to decide is what effect, if any, this behaviour should have on costs".The costs regime in the IPEC -- both the overall caps and the scale costs -- is mandatory. There are however three exceptions (i) where the party's behaviour amounts to an abuse of process; (ii) when a claim concerns a registered right which has been earlier certified as being valid; (iii) where a party has behaved unreasonably in an application, in which costs of the application would be awarded at the conclusion of the hearing and where those costs are in addition to the other costs subject to the cap.
|Tiddles prepares for|
his day in court ...
"strikingly unusual but not, in my view, truly exceptional on the scale of unsatisfactory behaviour [which leaves open the fascinating question as to what sort of behaviour one would have to practise in court to exceed the bounds of the merely "strikingly unusual" and enter the realms of the "truly exceptional"]. It is open to me in the present case to take Mr Perry’s conduct into account if this does not give rise to a total award in costs above £50,000."The judge then awarded Brundle an additional £2,000 in costs, as well as further £2,000 to a third party defendant who had also been sued by Mr Perry. The total costs to be paid by Brundle totalled £49,645 - just under the £50,000 costs cap. Following the Court of Appeal's decision in Samsung v Apple  EWCA Civ 1339 and in light of
"Mr Perry’s tendency towards an unrestrained response to anything he does not agree with, whether coming from the court or his competitors"the judge also ordered that Mr Perry publish notice of the judgment in Fencing and Landscaping News.
But does Merpel's view of the judge's reasoning actually constitute a fair reflection of today's depressing weather? Was he truly constrained by the "truly exceptional" threshold imposed by virtue of the special costs regime? And what would be "truly exceptional" conduct? Readers are invited to supply some truly exceptional suggestions ...
More on porridge here and (courtesy of Jamie Oliver) here
Not truly exceptional conduct, presumably, on the part of Jamie Oliver here