7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| (1) SANG-KOOK SUH (MR)
(2) MIJUNG SUH (MRS)
|- and -
|(1) KWANG-SUN RYU (MR)
(2) MIN-KYUNG RYU (MRS)
(3) BINMIN LIMITED
The Defendants did not appear and were not represented
Hearing dates: 25th April 2012
Crown Copyright ©
His Honour Judge Birss QC :
2. In these Regulations, "prescribed relief" means relief of any of the following kinds—
(a) an order requiring a party to admit any other party to premises for the purpose of inspecting or removing documents or articles which may provide evidence in any proceedings, whether or not the proceedings have been commenced;
(b) an interlocutory injunction—
(i) restraining a party from removing from the jurisdiction of the High Court assets located within that jurisdiction; or
(ii) restraining a party from dealing with assets whether located within the jurisdiction of the High Court or not.
(1) Subject to the following provisions of this regulation, a county court shall not grant prescribed relief or vary or revoke an order made by the High Court granting such relief.
(2) Paragraph (1) shall not apply to—
(a) any county court held by a judge of the Court of Appeal or judge of the High Court sitting as a judge for any county court district;
(b) a patents county court held by a person nominated under section 291 of the Copyright, Designs and Patents Act 1988 to sit as a judge of that court.
(4) Paragraph (1) shall not—
(a) affect or modify powers expressly conferred on a county court by or under any enactment other than section 38 of the County Courts Act 1984; or
(b) prevent a county court from varying an order granting prescribed relief where all the parties are agreed on the terms of the variation.
The judgment of the Court of Appeal
If I am right so far, there is no need to decide the question whether the judge's alternative ruling should be upheld, namely that he had power to make the Anton Piller and Mareva orders under the court's ordinary county court jurisdiction because the claim was before a patents county court held by a duly nominated judge.
For my part I have difficulty in accepting this alternative ruling. The 1991 Regulations provide by regulation 3 that, subject to the following provisions of this regulation, a county court "shall not grant prescribed relief…". It is not in issue that the Anton Piller and Mareva orders made in this case fall within the description of prescribed relief. By regulation 3(2) that prohibition shall not apply to:
"(a) any county court held by a judge of the Court of Appeal or judge of the High Court sitting as a judge for any county court district; or
(b) a patents county court held by a person nominated under section 291…'
I do not know in what circumstances it was thought likely that a High Court judge or judge of the Court of Appeal would sit as a judge for any county court district. Sub-paragraph (a) preserves any power that any county court has to grant prescribed relief if and when that court is "held by a judge of the Court of Appeal" etc. The alternative ruling of the learned judge proceeded on the basis that the prohibition in regulation 3(1) does not apply to "a patents county court held by a person nominated under section 291 to sit as a judge of that court" whether the action and claim are or are not within the special jurisdiction. If that were the intended meaning it could, as I think, have been more clearly stated by including the words "or person nominated under section 291" in regulation 3(2)(a) after the words "judge of the High Court"; or by making regulation 3(2)(b) provide that the prohibition shall not apply to "any county court held by a person nominated etc " instead of "a patents county court held by a person nominated etc ."
Miss Clark in her submissions in support of the judge's alternative ruling contended that, in any common law action, e.g. for trespass to goods under the ordinary jurisdiction of the county court, the judge, if he should be a person nominated under section 291, would have the power to grant an Anton Piller or Mareva injunction although such power would not be available to an ordinary judge of that court. It is not clear to me that that consequence is within the intentions of Parliament as expressed in the 1991 Regulations.