BUSINESS AND PROPERTY COURTS
INTELLECTUAL PROPERTY ENTERPRISE COURT
B e f o r e :
(sitting as an Enterprise Judge)
B E T W E E N:
| (1) MS JUTHIKA BHAYANI
(2) BHAYANI LAW LIMITED
- and –
|TAYLOR BRACEWELL LLP
UPON considering the Claimants' Application dated 12 February 2018, including the evidence of Ms Bhayani set out in that document signed under a statement of truth on 9 February 2018
AND UPON reading the witness statement of Peter Harold Caswell
AND UPON reading the skeleton arguments of Marc Beaumont, Counsel for the Claimants and Jonathan Moss, Counsel for the Defendant
AND UPON reading the skeleton argument in reply of Marc Beaumont, and the email submissions made by Mr Beaumont
AND UPON the Court finding that the Claimants' conduct in relation to the Application was unreasonable
IT IS ORDERED THAT
1. The Claimants' Application is dismissed.
2. The Claimants shall pay the Defendant's costs of the Application pursuant to CPR 63.26(2). These costs shall be assessed at the end of the trial or agreed between the parties.
3. Service of this Order is dispensed with.
"The applications made in a case and how they are handled are of particular importance in the IPEC. The caps on recoverable costs mean that parties are unlikely to obtain full costs recovery, and possibly not anything even approaching that on more complex applications. Multiple, difficult or unanticipated applications in a case may therefore create problems for the smaller and medium- sized enterprises that the IPEC was set up to serve.
Consequently, the IPEC approaches applications with a strong emphasis on proportionality and minimising costs, and its application procedures different in important ways from elsewhere in the High Court."
a. The proposed amendments are important to Ms Bhayani;
b. Fairness and justice require a hearing;
c. Adverse comment against a party should "only be entertained in open court given the principle of open justice";
d. Efficiency does not replace fairness; and
e. "The value of oral advocacy in our system is never to be underestimated".
a. That new counsel has recently been instructed and wishes to argue the Claimants' case differently; and
b. The witness statement of Mr Caswell dated 7 February 2018 has recently been provided.
a. Absence of consideration: I do not accept that this is clearly the complete defence that the Claimants allege. As a practical matter, partnerships, including law firms, change all the time – partners are added and removed, terms change, and they do not invariably change for the better (or indeed, what is better for one partner may not be better for others). In addition to the novelty of the point at this very late stage, as a question of logic, the Claimants' position does not strike me as arguable. I also accept the Defendant's submission that this is not simply a legal argument, but would require a detailed factual enquiry, including as to any additional benefits Ms Bhayani obtained.
b. Deletion of old clause 2.6: Again, I do not accept that this is purely a legal argument. If a defence is to be run that Ms Bhayani did not know what she was signing, then significant cross-examination would be required.
c. Estoppel: Again, this entirely new defence (in fact three new defences in the alternative), made for the first time now by an experienced employment solicitor, raises new facts that will need to be determined. This cannot be done without significantly overrunning the trial.
d. Loss: As pointed out by the Defendant's counsel, liability and quantum have been split. These are matters for any damages enquiry – they are not matters for now. If the aim is to encourage settlement, these figures can be put in without prejudice or open correspondence. It is inappropriate to include them in amended pleadings for the liability trial.
e. Restraint of Trade: Again, this is a completely new argument, which requires a detailed factual investigation.