Gama Healthcare Ltd v Pal International Ltd, an extempore decision last Friday from Judge Richard Hacon in the Intellectual Property Enterprise Court (IPEC), England and Wales, and noted only on the subscription-only Lawtel service, is one of those small and -- to some -- insignificant -- procedural cases that form part of the very fabric of judicial dispute resolution. At the heart of it was Gama's application to amend its particulars of claim in an action for passing off in relation to its packaging for clinical wet wipes used in the healthcare industry.
|Gama produces the Clinell range of wipes|
|A selection of Pal products|
Judge Hacon gave a thoughtful appraisal of the issues involved and, on balance, allowed the amendments to the particulars of claim.
* Part.63 of the CPR had three aims: (i) to require the parties to work out the totality of the case by the time of the case management conference at the latest; (ii) the provision of all evidence for a full understanding of the case by the time of the exchange of evidence at the case management conference in order to promote settlement before trial and accurate offers to settle under Part 36 of the CPR, and (iii) to minimise applications between the case management conference and trial prompted by late ideas of what might be argued at trial.
* Rule 63.23(2) of the CPR provided that "save in exceptional circumstances, the court will not permit a party to submit material in addition" to that ordered following the case management conference. While amendments to pleadings did not constitute additional "material", they would not be allowed if they required the submission of further evidence -- which was only permitted in exceptional circumstances.
* In the IPEC [being a relatively cheap, cheerful and informal forum for the determination of IP claims] it was always to a degree a judgment call whether particular aspects of an argument should be in a pleading, or whether it was sufficient to leave those to be dealt with in evidence or in the parties' skeleton arguments.
|Hmm.The Kats are not amused ...|
* On balance, the amendments were permitted, subject to one aspect of alleged post-sale confusion -- that alleged deficiencies in Pal's product would be attributed to Gama -- a point that had been taken at the case management conference and could not be raised again.
* Pal was permitted to adduce evidence in relation to wet wipe training in National Health Service hospitals and any further evidence thought appropriate, and, after trial, might want to make further submissions in relation to costs incurred by that evidence.
This Kat thinks the decision must be right. It's not as if the amendments would introduce some completely fresh issue or send Pal scurrying off in all directions in search of relevant material of its own in order to defend some previously uncontemplated claim. Merpel agrees, but with this caveat: amendments of this sort are more likely to be sought and granted, she thinks, in respect of a tort such as passing off, since this is a legal wrong with an open weave, in which the manifestation of the tort can often be characterised in so many different ways. If the action were for trade mark or patent infringement, she thinks the chances of getting away with post-case-management amendments miht be slimmer.
(Non) disposal of wet wipes here, here and here
The Lawtel note does not show the parties' respective wipe packaging and the illustrations above were the closest to similar packaging that this Kat could lay his paws on via a Google Image search. If anyone has more confusingly similar images, do please share them.