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Monday, 19 February 2007

Death by lingering litigation

The IPKat has twice (first here, then here) mentioned the dispute between Marine Rescue Technologies Ltd and others and litigant in person Michael Burchill. Essentially, Marine issued infringement/passing off proceedings in September 2001 following a dispute concerning the good title of certain patents and design rights. In 2006 Burchill applied to strike out Marine's claim, relying on Civil Procedure Rules 3.1, 3.4 and the inherent jurisdiction of the court and citing four separate instances of inordinate delay. Warren J dismissed the application on the basis that the delays - whether taken individually or cumulatively - could not be viewed as disgraceful: nor had any prejudice to their position been caused by the delays. A year later, the case has gone no further. Burchill, who was out of the country last week, has written to the IPKAT:

"I applied for a hearing regarding the claimant's lack of disclosure and it has been granted for Monday 19 February. I wrote four times to the claimants' solicitors regarding the hearing and they never replied.

On Friday at 1.30pm I left for UK. At Amsterdam I checked my emails at 7 pm and saw one from [the claimants' solicitors] admitting they have breached the order and asking for a further 14 days to comply. They should have complied on 19 January. So five and a half years into an emergency application they have not complied with disclosure. Their latest reply on Friday last was basically "We apologise for the delay in responding to you and to the lack of compliance with the order. This is in most part due to the illness of the writer". They were ordered on 18 December to comply by 19 January and now, on 19 February they need two more weeks, As far as a litigant in person is concerned, the law is toothless until the final verdict.

My ticket for the train is booked for Monday and I cannot change it, nor could I trust [the claimants' solicitors] to submit a consent order on Monday. So I will attend court 55 at 2pm at the Royal Court of Justice, Thomas Moore Building, and see what happens ...

What is CPR there for? Lawyers don't follow orders, courts don't care that lawyers don't follow orders and nobody cares about the law - just billing hours. Three times I have fought for disclosure = 3 x costs - 3 X stress and 3 x non-compliance with orders. Might as well tell the judge HIS word is worth less than a Nigerian Bank Guarantee".
The IPKat emphasises that he has no knowledge of the facts relating to the substantive IP dispute and no opinion whatsoever as to the relative merits of the parties' cases. He is however appalled at the notion that an action that was commenced in 2001 can have failed to reach the starting blocks. With 21st century Civil Procedure Rules and good case management powers, actions like this should be pushed through or kicked out. To allow death by lingering litigation does everyone a disservice. Merpel agrees and adds, I do hope the folk from legal press are keeping an eye on this one and that they'll be in court today.

Note: the sloths illustrated on this post have a very low metabolic rate and survive through inertia (see Wikipedia for further details). Let's hope that the courts and litigants in English and Welsh IP infringement litigation don't need this recourse. After all, we talk of a legal "action" ...

2 comments:

Anonymous said...

In a recent case in which I acted for the Defendant, the issue that irked the client most was that the Claimant's legal team took every opportunity to miss every deadline and to ignore correspondence. We obtained orders (including an unless order) and complained to the senior partner of the solicitor on the other side - with little effect. We became used to the 11th hour "oops, sorry, no order for costs" or the "we thought we had already done that" communications, followed by the Claimant's representative who turns up to the hearing and tries to convince the court that (now that they have agreed to do what they had failed previously to do) we are wasting the court's time and that we are engaged in "old style litigation".

The case management powers of the High Court only work when the parties comply with the CPR without being obliged to do so by further orders. In my experience, the occasions when the case management powers do not work are exactly those where they are most needed. In interim hearings and at the trial proper, masters and judges are simply not interested in looking at how the parties have behaved - even where the Claimant has had to be dragged kicking and screaming to their own trial.

The problem can be particularly difficult with IP cases. Excepting this particular case, IP cases are often taken on by solicitors who do not have the requisite expertise. The case is then, effectively, run from counsel's chambers. This has four effects: First, the solicitors become wholly reactive. Secondly, they miss deadlines. Thirdly, there is a "stop-start" approach, with interim periods of paralysis. Finally, whilst barristers are good at many things, the day-to-day management of the litigation process is not usually one of them and costs increase exponentially (and this increase is not recovered on taxation).

When sanctions are obtained, the Human Rights Act is then wheeled out to avoid them.

Whatever the merits of Mr Burchill's case, there is no excuse for this behaviour and I have great sympathy with him and hope that he succeeds this time in securing procedural compliance.

Jordan said...

Is there no equivalent in England and Wales to Rule 11 sanctions in the US? I'm guessing not by the post and comment, but can't judges take a more proactive approach on this issue or is it not possible? I remember at a discovery hearing in Texas (in state court) seeing the judge get up, go to a whiteboard, and draw out the discovery rules for a defence lawyer who had frivolously objected to some discovery. I can guarantee that he went home and read rules before ever stepping back into that court again...

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