IT COSTS TO WIN, IT COSTS TO LOSE; CC, AB

It costs to win, it costs to lose

Northstar, Seaquest and Ultraframe v Fielding , which you can read here on BAILII, just keeps coming back to court again and again. This time it was the turn of a two-man Court of Appeal (Lords Justices Waller and Jacob), giving judgment on Wednesday - or Gowersday, as 6 December seems destined to be known.

The parties locked horns in an IP infringement trial that took over 90 days to dispose of. For the record the judge was Mr Justice Lewison, who is either specialising in very long trials or taking short ones and growing them from seed. At the end of it, Lewison J found the defendants guilty of serious dishonesty. However, he also made other findings in reference to which it turned out that the defendants were the winners. To the annoyance of the claimants, the judge made them pay the costs (though he did make a reduction to reflect the defendants' dishonesty), saying that the amount the claimants spent in establishing the defendants' dishonest conduct had been disproportionate. The claimants appealed and the issue arose as to whether the effect of the judge’s order was to allow some of the defendants to recover the cost to them of seeking to maintain what was ultimately a dishonest case.

The Court of Appeal, for whom Waller LJ gave the judgment, dismissed the appeal. In the court's view

* Consideration of a party’s conduct should normally take place both (i) when the judge was considering what sort of order for costs he should make and (ii) during their actual assessment.

* Dishonesty should be penalised in costs, but the dishonest party should not be placed in double jeopardy.

* It was a good idea for judges to make it crystal clear exactly what their reasons were when making a costs order in a case such as this.

* There was no general rule that a losing party who could establish dishonesty had to receive all his costs in establishing that dishonesty, however disproportionate they might be. Proportionality and the conduct of the paying party in attacking that dishonesty was clearly something to which a trial judge was entitled to have regard.

Noting the extreme length of the trial judge's judgment (1,929 paragraphs, covering nearly 500 pages) and the colossal costs involved, as well as one side being penalised for being wrong, the other being penalised for being dishonest, the parties didn't deserve each other. Come, come, says Merpel, that's not a nice thing to say: this case would have been a great paradigm for anything the Gowers Review had to say about the length and expense of IP litigation.


CC, AB and the letters of the law

Another case recently posted on BAILII is CC v AB [2006] EWHC 3083 (QB), a decision of Mr Justice Eady from last Monday which would have been blogged earlier if it wasn't for the IPKat's insane distraction with the Gowers Review. In presenting his readers with this note the Kat apologises for omitting the names of the star characters in the case: the whole dispute was about what they could be called.

Right: the IPKat says, if you're going to have a fling, it's best not to involve anyone else

In this curious spat CC had an adulterous fling with AB's wife, conveniently known as N. AB made it clear that he wanted to reveal the information to the world at large - partly out of revenge and partly to earn lots of money by selling the story to the media. CC sued for interim injunctive relief to stop AB spilling the beans about the relationship on the basis that any such communication would either be a breach of confidence or harassment under the Protection from Harassment Act 1997.

The harassment claim was based mainly on emails and phone calls from AB to CC that were said to be abusive. AB did not resist an interim order to stop harassing CC, but he did maintain that a party to an adulterous relationship could never, as a matter of law, obtain injunctive relief against the wronged party preventing the latter from disclosing the relationship. The usual competing rights to privacy and to freedom of expression (Articles 8 and 10 of the European Convention on Human Rights) were also argued.

Eady J granted CC the interim relief he craved. In his opinion

* There could be no blanket rule that an adulterer could never restrain the publication of matters relating to his adulterous relationship. After all, even an adulterous relationship might attract a legitimate expectation of privacy. That being so, there was no rule which automatically exempted a 'wronged' husband from being gagged - even though his right to free speech might, on the right facts, be given priority.

* Both CC's and N's privacy rights under ECHR Article 8 had to be taken into account. This being so, on the facts of the case an injunction restraining AB from communicating, directly or indirectly, with the media or on the internet in relation to the subject of the former relationship with N was appropriate.

The IPKat hates these cases: they're always so much decided on the specific facts that it's almost impossible to advise a client whether he can communicate information or not without risking the expense and inconvenience of litigation.

Comments here from The Times, The Daily Mail and the Hindustan Times