INTELLECTUAL PROPERTY ENTERPRISE COURT
Fetter Lane, London, EC4A 1NL
B e f o r e :
| RICHARD PERRY
|- and -
| (1) F H BRUNDLE
(2) BETAFENCE LIMITED
(3) BRITANNIA FASTENERS LIMITED
Tim Austen (instructed by Collyer Bristow LLP) for the First and Second Defendants
Hearing dates: 27 March 2017
Crown Copyright ©
Judge Hacon :
Background to Mr Perry's application
The law relating to civil restraint orders
" where a party has persistently issued claims or made applications which are totally without merit."
The effect of an ECRO, broadly, is that the party who is subject to it must obtain the permission of the judge identified in the order issuing a claim or making an application concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made (see CPR PD3C 3.3).
"4.1 A general civil restraint order may be made
where the party against whom the order is made persists in issuing claims or making applications which are totally without merit in circumstances where an extended civil restraint order would not be sufficient or appropriate."
"4.3 Where a party who is subject to a general civil restraint order
(1) issues a claim or makes an application in a court identified in the order without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed
(a) without the judge having to make any further order; and
(b) without the need for the other party to respond to it;
(2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss that application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal."
" I draw from these authorities the following principles:
(1) When considering the appropriate order in relation to an application for a CRO, the court should engage in a graduated and proportionate response to the identified abuse.
(2) Where the application is for an extended CRO, the litigant against whom the order is sought must have made a minimum of three claims or applications which were totally without merit in order to be taken to have 'persistently' issued such claims or applications within the meaning of paragraph 3.1 of PD3C.
(3) Subject to that minimum, the persistence of the litigant in issuing such claims, in particular the likelihood that such persistence will be maintained in the future, is to be assessed by reference to his conduct as a whole.
(4) The categorisation of a claim or application as being totally without merit need not have been done at the time they were made; the court hearing the application for the CRO is entitled retrospectively to adjudge a claim or application to be totally without merit."
" There is also an observation which I take from the judgment of Warren J in KL Communications, at . A CRO should not in practice significantly deprive a litigant of any right to which he or she would otherwise be entitled. It acts as a filter to preclude the making of unmeritorious claims or applications. This ought to work in favour of all parties, including the litigant who is the subject of the order especially where he is a litigant in person by ensuring that their time and money are not wasted by initiatives doomed to failure."
"(4) Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime.
(5) In that context, the fifth point is important. A GCRO is not, as some of Mr Gray's submissions would suggest, a bar on the bringing of any proceedings. It imposes a permission filter. Permission filters are a well-established feature of civil and criminal procedure. They are most common as a way of controlling the use of appeal mechanisms. But permission is required to initiate a claim for judicial review. The court would not refuse permission to bring a claim of substance with arguable merit. What it might do, if presented with such a case, is to give directions to ensure that any untenable aspects of the claim were removed and to ensure that all remaining claims were conducted fairly and efficiently, did not consume disproportionate resources, and were otherwise dealt with in accordance with the overriding objective."
The claims and applications Mr Perry wishes to make
"1. Pecuniary damages for the fraud itself in excess of £1m (one million pounds). Please note: the turnover on sales of the product seems to reach an amount in excess of £1.5m based on current evidence. Without having had any access to accounting records this is an estimation based on volume where figures provided by the Indian Manufacturer and as found in Michael Brundle's own witness statement in CC13P00980. The Courts job is to remove all gain (turnover and increased trading goodwill and business expansion) from the defendants, deter further offences and impose punishment, hence in point 2 below:
2. Aggravated damages for the consequences of the fraud on the claimant, in excess of £5m (five million pounds but not more than £30m (thirty million pounds)).
3. Damages for sales of the product outside of the United Kingdom but which were masterminded by Betafence in the UK, in excess of £1m (one million pounds).
4. Order for any existing offending products to be destroyed or handed over to the claimant.
5. Injunction to prevent any further sales of the product.
6. Order (if possible) to extend the life of the claimants granted patents by five years.
7. Order (if possible) to restore any lost patents, designs, trademarks or copyrights to the register.
8. Director's Disqualification Order for all individuals involved in the fraud to prevent these individuals from managing or having involvement in the directing of corporations, under rules of offences by company officers.
9. Revoking of any relevant practice licences or ban whether temporary or permanent of individuals involved in fraud.
10. Recommendation to Solicitors Regulation Authority and/or Police for any further investigation as the Court sees appropriate.
11. Serious Crime Prevention Order.
12. Rescission/annulment of Bankruptcy Order.
13. Order to freeze the assets of the defendants as I don't believe they have the means to pay the damages and refuse to provide any financial proof that they can so basically they've paid themselves the big Christmas bonuses and spent the money made through the fraud and then claim they can't afford to pay me.
14. Contempt of Court order for Collyer Bristow LLP.
15. Contempt of Court order for Stuart Baran and Patrick Wheeler and revocation of practice licences.
16. Costs and interest."
"Collyer Bristow LLP are not yet party to proceedings and I would like to add them to the claim for:
1. Dishonest assistance,
2. Fraud by abuse of position;
3. Failing to disclose information.
4. Intent to conceal fraud.
5. Masterminding civil proceedings against an individual to conceal criminal activity carried out by corporations (their clients).
Official Receiver should be added to proceedings for:
1. Dishonest assistance whilst acting as a trustee.
2. Perverting the course of justice.
3. Interfering with the administration of justice.
4. Fraudulent breach of trust when acting as a trustee.
5. Conspiring to defraud or allow the continuation of a fraud when acting as a trustee."
Whether a GCRO should be granted
"We are aware that you have written to our client's supplier, Betafence Limited, and that their advisers have provided detailed reasons in their letter to you dated 25 July 2012 why, if the Patent is valid and subsisting at all, the Brackets do not infringe."