As the CRO flies: when patent infringement litigation is not a Brundle of fun

Merpel thinks people who write inspirational
messages have a lot to answer for

Character traits that are admirable in one context can be quite a nuisance in another. One such virtue is persistence and a refusal to be beaten.  In the context of an inventor working to achieve an elusive innovation, a surgeon seeking to perfect an operation or a rights campaigner working to eradicate prejudice or poverty, it can be the crucial asset that catalyses a successful outcome,  In the context of a patent litigant it can however be a trigger for wasted effort, energy and resources.

Today this Kat has already posted an item dealing with a fairly minor sort of persistence, where a charity could not bring itself to use a logo that was not confusingly similar to that of another charity and, convinced of the rectitude of its position, refused all advice to sit down with the other side and settle out of court. Now here's an example of a far more egregious case of misplaced persistence. It's Richard Perry v F H Brundle & Others, a saga that has entertained many a casual reader but saddened many a serious IP litigator. It has been in this blog before and may be here again. At any rate, it has been rumbling on again of late.

But reality doesn't depend
on whether you believe it

Readers may remember the initial litigation, noted by this Kat back in March 2014 in "Coming off the fence: IPEC knows a threat when it sees one", in which the Brundle defendants established that Perry had made an unwarranted threat to commence patent infringement -- and that Perry's counterclaim for patent infringement was a non-starter. Only a couple of weeks later the same court entertained the same litigants in proceedings noted by this Kat in "Forging a new path: cost caps and contrary behaviour in cut-price IP court", here. Here the court, in the person of Judge Hacon, took a surprisingly lenient view of Perry's decision to write a letter which purported to be from the judge himself, reversing the earlier trial decision and awarding himself damages of £5 million at the same time. It could only be a matter of time, surely, before Perry, whom some unkind readers might stigmatise as being more than mildly eccentric in his behaviour, would be in court again. And so it was.

Oh no we don't

Mr Perry was back in court again last month, when he persisting in bringing what was to all intents and purposes a repeat of his earlier patent infringement claim, notwithstanding that he was now the subject of a bankruptcy order since he was unable to meet the costs order that had been made against him -- and that his appeal against the bankruptcy order had also been dismissed as being quite without merit. Again he came before the avuncular person of Judge Hacon.

This works for cats -- but not
for IP litigants without cash

On this occasion, as noted by subscription service Lawtel (since this extempore decision is not on BAILII), on 25 September Judge Hacon was asked to strike out Perry's patent infringement claim in its entirety.  Said Brundle, this claim involved the same allegedly infringing acts in respect of the same patent and looked like a decisive case of res judicata. What's more, Perry surely had no standing to bring this action because any right to bring proceedings had vested in his estate on the making of the bankruptcy order -- and the evidence showed that the Official Receiver had not consented to Perry suing. Perry conceded that he had no cause of action because he was a bankrupt, but he argued that, rather than striking out the action, the court should stay the proceedings pending the outcome of what he said was his ongoing appeal against bankruptcy before the Court of Appeal.

Judge Hacon granted the application to strike out.  In his view:

* While Perry might have lodged some sort of application before the Court of Appeal, it was doomed to fail. He had exhausted all the avenues available to him to appeal against his bankruptcy and there was therefore no sound reason to stay the patent infringement proceedings rather than strike them out.

* Even if Perry did have a cause of action, the proceedings would still be barred because the cause of action was res judicata, being materially the same as the counterclaim in the first action. These proceedings were therefore totally without merit, as were four other applications that he had apparently brought in the course of the same proceedings.

But that's not all.  Judge Hacon also issued an extended civil restraint order (CRO) against Perry, to stop him bringing any more versions of his action against Brundle.  Last week, at [2015] EWHC 2737 (IPEC), he gave his reasons.  His judgment culminated, at [34], with the following assessment of the situation:

In my view there is a very real prospect that notwithstanding Mr Perry's calm and measured submissions in court, his sense of injustice will shortly be rekindled and that this will lead to further hopeless claims and/or applications. A limited CRO would not be sufficient because such claims and applications will probably be made wholly or in part outside these proceedings. I also accept Mr Baran's submission [on behalf of Brundle] that Mr Perry's applications have necessitated the expenditure of considerable sums by the Defendants which are unlikely to be recovered and that if Mr Perry is left alone the pattern of wasted expenditure will continue.

Does anyone know how to appeal against a civil restraint order ...?