Fetter Lane, London, EC4A 1NL
B e f o r e :
| PARAINEN PEARL SHIPPING LIMITED
SMT SHIPPING (CYPRUS) LIMITED
EUREKA SHIPPING LIMITED
|- and -
|KRISTIAN GERHARD JEBSEN SKIPSREDERI AS
KGJS CEMENT AS
KGJ CEMENT AS
James Abrahams QC and Yash Kulkarni (instructed by Bristows LLP) for the Defendants
Hearing date: 16 October 2017
Crown Copyright ©
MR JUSTICE ARNOLD :
The declarations claimed by the Claimants
"(a) declarations of non-infringement of patent EP 2,032,426 in its UK Designation in relation to the M/V Nordanvik; and/or
(b) declarations of non-infringement of patent EP 2,032,426 in its Finnish and Swedish Designations in relation to the M/V Nordanvik; and/or
(c) declarations that the First Defendant's rights in respect of the Patent in relation to the M/V Nordanvik have been exhausted within EEA; and/or
(d) declarations that each of the Defendants has consented to the use of the System on the M/V Nordanvik."
The Lugano Convention
"A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued ... in matters relating to tort … in the courts for the place where the harmful event occurred or may occur."
Interpretation of Article 5(3)
CPR rule 6.33(1)
The law applicable to claims for DNIs of patents
Declaratory relief under English law
"The modern approach to the grant of declarations can be taken from two cases: Messier-Dowty Ltd v Sabena SA  1 All ER 275 at - (Lord Woolf MR) and Financial Services Authority v Rourke  CP Rep 14 (Neuberger J, as he then was). In Messier-Dowty the court held that the grant or refusal of declaratory relief in relation to commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. Instead it should be kept in proper bounds by the exercise of the court's discretion. Negative declarations were an unusual remedy which can result in procedural complications resulting in unfairness to the defendant. But subject to appropriate circumspection, there should be no reluctance to grant negative declarations 'when it is useful to do so'."
"Foreign designations of a UK patent are not patents under the 1977 Act and CPR 63.14 does not provide a means of service in relation to them. Nor is the position any different if the claim form also includes a claim in respect of the UK designation. In such a case the claim form must be regarded as including separate claims in respect of each designation and CPR 63.14 only provides a means for its service in so far as it relates to the UK designation. Were the position otherwise, the provisions of CPR 63 could be circumvented by, as Lilly puts it, convoying claims in respect of foreign patents with a claim in respect of a corresponding UK patent. That would be an absurd result and one which cannot have been intended."
"In both [Case C-189/87 Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co  ECR 5565] and [Case C-51/97 Réunion Européenne SA v Spliethoff's Bevrachtingskantoor BV  ECR I-6511] the CJEU has recognised that the scheme of the Judgments Regulation creates the difficulty that one jurisdiction may not be able to deal with all the related points in a dispute. This inconvenience is the price which the scheme in the Judgments Regulation imposes by setting out well-defined rules in order to achieve its primary purpose of ensuring that there shall be no clash between the jurisdictions of member states of the EU, as Lord Goff of Chieveley observed in Airbus Industrie GIE v Patel  1 AC 119, 131-132."