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" ...