FRENZIED ANIMAL ATTACK ON DEPUTY HIGH COURT JUDGE

The Court of Appeal handed down its reasons today for allowing the appeal in Oakley Inc v Animal Ltd [2005] EWCA Civ 1191, posted in full on BAILII.

The point in issue is a complex one: EC Directive 98/71 (the Design Directive), requiring Member States to approximate their registered designs legislation, gave them an option under Article 11(8) to retain their existing designs legislation in respect of designs registered under that legislation. The UK Secretary of State, acting under section 2(2) of the European Communities Act 1972, accordingly issued the Registered Designs Regulations 2001, Regulation 12 of which preserved the existing UK legislation in relation to designs already registered under the Registered Designs Act 1949 (as amended).

Peter Prescott QC (left), sitting as a Deputy High Court Judge of the Chancery Division, held that, in so far as the Secretary of State exercised the option to retain existing legislation in relation to old registered designs, he acted ultra vires in that Regulation 12 was not passed "for the purpose of implementing any Community obligation of the United Kingdom" under section 2(2)(a) of the 1972 Act; nor was it passed "for the purpose of dealing with matters …arising out of or related to any such obligation.." under section 2(2)(b). If this was right, the Secretary of State could never exercise the option to retain existing legislation when issuing regulations implementing an obligation imposed on the United Kingdom by a Directive. What's more, any exercise of a "significant policy choice" would need primary legislation. The Government would then have to introduce primary legislation in every case. The judge's narrow construction of Sections 2(2)(a) and (b) placed in jeopardy many regulations passed under section 2(2), which is why the Secretary of State was invited to address the Court below and became a party to the appeal itself.

The Court of Appeal (Lords Justices Waller, May and Jacob), in three separate and quite emphatic judgments, held that the Deputy Judge's decision was utterly wrong and affirmed that the Design Regulations 2001 had been validly made. Said May LJ,

"The extreme version of the deputy judge's decision and of Mr Howell's submission, that any policy choice made as part of implementing a Directive can only be done by primary legislation, is logically possible but practically absurd" (para.44).

According to Jacob LJ the effect of the Deputy Judge's interpretation

"leads to such an absurd conclusion that it must be wrong – super acte claire" (para.55).

In case anyone should miss the point, the same judge added (at para.62)

"the Deputy Judge's conclusion, that non-Schedule 2 derogations provided for in a Directive can only be implemented by an Act of Parliament is startling and, to my mind, obviously wrong".

Then, just to be sure:

"I reject the Judge's view as a non-purposive and irrational construction of s.2(2)(a)" (para.67).

The IPKat expected this and feels a little sorry for the Deputy Judge, whose non-purposive construction of the statute does at least have the logic and certainty of literal interpretation to support it. Merpel says, this issue seems so much bigger than the little dispute between the original parties. Was this a put-up job, designed to provide some intellectual exercise for some pretty keen minds?