England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		St Dunstan's House 133-137 Fetter Lane London EC4A 1HD
		2nd June 2011

JUDGE BIRSS:

1. I have before me an application to set aside a judgment in default under CPR 13.3 by the Defendant in this action. The action was brought by the Claimants, National Guild of Removers and Storers Limited and the Defendant is Mr Simon Ogarro. Before me today the National Guild are represented by Miss Isabel Jamal instructed by Coyle White Devine and Mr Ogarro represents himself with the benefit of a McKenzie Friend, Miss Debbie St Pierre.
2. The circumstances are as follows. In January 2010 Mr Baldwin QC, sitting as judge of the Patents County Court, gave judgment in default against the Defendant that included an order for an enquiry. In November 2010 I heard the enquiry in this case along with three others, and gave a judgment which is reported at [2010] EWPCC 015. In that judgment I assessed the damages which Mr Ogarro owed the Guild for his unlawful use of their trademarks in the total, including interest, of £44,826.20. The facts are set out in that judgment and I will not repeat them here.
3. In January of this year I heard the application by the Claimant for a final charging order to put a charge on Mr Ogarro's property, having made an interim charging order on paper in advance of that hearing. On that hearing in January Mr Ogarro attended the hearing and that was the first time, so far as anyone can tell, that Mr Ogarro had attended any of the hearings in this case. He said that he had not received any of the papers in this case until the final charging order and he felt that the matter should all be set aside, because he felt he had a good defence to the claim.
4. In a witness statement of Mr David Sheehan for the Claimants, Mr Sheehan sets out the history of the way in which various documents were served. I will not repeat the entirety of it, but essentially it explains that the first letter was written in September 2009 and it was addressed to the Defendant's address at 135 Becklow Road. From that time on all the way through to January when the judgment in default was entered and then the order was served in February 2010 and various letters were written throughout 2010, all of them were sent to the Defendant's address at Becklow Road. The papers for the hearing in November were sent to the address of the Defendant in Becklow Road and so on.
5. What happened in December was that on 16^th December 2010 the interim charging order that I had made on 7^th December was served on the Defendant. It was sent to Becklow Road, but it was sent at the same time to the Defendant's address at Flat 27, Manchester Road. That is the occasion on which Mr Ogarro says he started becoming aware of these proceedings, because the Manchester Road address is his address.
6. Mr Ogarro's case is that although his business was based at Becklow Road, he ceased trading and moved to a new address shortly afterwards in November 2006, the new address being Flat 27 Manchester Road. His partner remained at the old residence. Mr Ogarro says that he did not receive any of the information, any of the documents which were served to his former partner's address. The Claimants submit that that explanation is not credible. They point out that the Defendant's children were living at his ex-partner's address and the general submission is that it just beggars belief that the Defendant had no idea about what was going on. They also point out that some of the things that Mr Ogarro said at the hearing in January to explain why he was not aware of what was going were highly improbable. The Defendant -- I have said this already -- the Defendant made clear his children were living with his ex-partner at 135 Becklow Road and they questioned whether the Defendant was suggesting that he never visited the address to see his children or they did not visit him. Why, they ask forensically, would his ex-partner choose to give him a copy of a letter on 16^th December, but no other documents? That is one of the things that Mr Ogarro had said.
7. His evidence on the facts is that he had ceased trading as a removal man in November 2006, although he continued with approximately 10 further jobs into February 2008.
8. The application to set aside judgment in default is governed by CPR 13.3. I can dispose of that briefly. There is no basis to set aside the judgment in default unless there was any real prospect of success of saying that the judgment was wrongly entered, because the Defendant had some defence. The Defendant has made it absolutely clear in his evidence that he has no defence to the liability question in this case. He admits using the Guild's trademarks at a time after he ceased to be a member of the Guild and in my judgment, there is no basis for setting aside the judgment in default that was entered in January 2010. I decline to do so. However, that does not mean that I should not consider what to do about the damages enquiry. The difficulty is this, on the basis of what Mr Ogarro contends, the damages sum of money is too large. It is not £44,000 if he stopped trading in 2006 the sum is something like £26,000 and if it he stopped trading in February 2008 the sum, including interest, would be £38,000. These are still very substantial sums of money, but they are clearly lower.
9. The principles to be applied to decide whether I should set aside the enquiry for damages are governed by CPR 39.3, which deals with the failure to attend the trial.

"(5)  Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant -

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.

There is no question that Mr Ogarro can be said to have acted promptly, the issue is items (b) and (c).

10. As far as having a reasonable prospect of success, as I have said already, in my judgment, Mr Ogarro has a reasonable prospect on the basis of his evidence of submitting that the sum of money is too large, although he has no prospect at all of submitting that the sum of money should be anything approaching zero. The issue really is about item (b), does Mr Ogarro have a good reason for attending trial? Mr Ogarro says that he was unaware of everything until after the trial. The Claimants submit that that evidence is not credible.
11. In my judgment, criteria (b) is satisfied in this case. On the basis of the evidence I have had, I accept Mr Ogarro's evidence that he did not know about this matter and accordingly, since he did not know, he had a good reason for not attending the trial. He has acted promptly when he found out about it. He had a good reason for not attending the hearing and he has a reasonable prospect of success in altering the sum of money that I have ordered. I should say the reason that I have accepted his evidence is it seems to me inherently credible that since Mr Ogarro and his partner had fallen out some years before, I can see, just about, why it may be that he was not aware of the paperwork that had been sent to his former address.
12. The question is what to do from now on. It seems to me that it would be wholly disproportionate in the circumstances of this case, bearing in mind the overriding objective to, amongst other things, save expense and manage court time sensibly, to order that there should be another enquiry and a re-run of the enquiry as to damages. That will assist nobody in this case on the basis of the evidence that I have seen. What I am going to do is I am going to reconsider the sum of money right now. I have got the evidence Mr Ogarro wishes to put forward and I have the submissions from the Claimants. It is absolutely right, as Miss Jamal says, that the Claimants are in a position where they are not fully able to deal with everything Mr Ogarro has said. He has sought to supplement his evidence in the course of this hearing. On the other hand, it seems to me the best approximation of justice in this case is to hear what Mr Ogarro has said to me and to have read his evidence and to deal with it as best I can right now.
13. The point ultimately is whether I should do one of three things. I should either leave the sum of money as it is on the basis that in fact there is no basis for reducing the sum on the basis of what Mr Ogarro said, or should I accept his evidence that he stopped trading in November 2006 or should I find that he stopped trading in 2008?
14. First of all, so far as 2006 is concerned, it seems to me on the evidence of Mr Ogarro, that there is no basis for stopping the calculation in 2006. His evidence is absolutely clear that although, as he put it, he stopped trading, in fact he was doing further jobs between 2006 and 2008. He estimates in his evidence that he had conducted approximately 10 jobs. Whether it was 10 or not I do not know. What I do know, however, as the Claimants have pointed out, is that he made an adjustment to his own website, which is run under the auspices of Yell.com, in 2007, in other words in the middle of the period. That is consistent, in my judgment, with a business which is still trading, at least to some extent. When I put that to Mr Ogarro he explained that that was an attempt by him to get his business going again, a last ditch attempt, and it was not successful. In my judgment, what it does indicate is that it would be quite wrong to accept the suggestion that the business stopped in 2006 and I decline to do so.
15. The position in relation to 2008 though, is rather different. Mr Ogarro had explained in his evidence that it is his case that he stopped in 2008. The Claimant's position going into this hearing was to point out, absolutely rightly, that the website that Mr Ogarro had had was still in existence in May 2010. They submitted perfectly properly that that is inconsistent with the idea that Mr Ogarro had stopped trading in 2008. Mr Ogarro before me explained that he was not aware that the website was still there, because he had not paid Yell.com since 2005, although he was still paying off the debt that he owed Yell, as I understand it, up until 2008.
16. The problem, as the Claimant puts it to me, is that if I accept Mr Ogarro's evidence that he stopped trading in 2008 then that prejudices the Claimant, because it means they are not in a position to check and to investigate this story, explanation for why the website was still in existence.
17. At the end of the day, bearing in mind what this case is about, the nature of Mr Ogarro's means, the nature of the Claimant and the nature of this case, ultimately it is still a closer approximation to justice to deal with this matter here and now rather than put this off for a further hearing, which would just generate expense out of all proportion to the sums of money at stake. It would be quite possible to spend in costs the sum of money which would make the difference between leaving the sum as it is and deciding that the business stopped in 2008 and I propose to do it right now.
18. On the basis of what I have heard from Mr Ogarro and on the basis of the submissions from Miss Jamal, it seems to me that it is more likely than not that Mr Ogarro did indeed stop trading in February 2008 and was indeed unaware that the website was still in existence. That does not absolve him of the liability if the website is still there now, the injunction against him certainly means he needs to get rid of it. However it does seem to me to mean that an adjustment is necessary to the sum of money to be ordered on this enquiry. At the end of the day Mr Ogarro's incompetence and the way he has conducted these proceedings does not, in my judgment, enlarge the Claimant's rights. If he did stop trading in February 2008, as I believe he did, then they are not entitled to the damages after that date.
19. Perhaps anticipating that that might be the outcome the Claimant's have provided a schedule which calculates what the sum of money would be on the basis that I accepted the evidence that he stopped trading in 2008 and I will use that table. It means that the principal sum to be paid will now be £33,233.22. Within interest that comes to £38,909.50. I will accordingly set aside the order that I made and replace it with the figures I have just given.
(Second Judgment given)
20. It now falls for me to decide what to do about the Claimant's application to make their interim charging order a final charging order. I have just heard Mr Ogarro's application to set aside the enquiry and I have set it aside and replaced the sum on the enquiry with a somewhat lower sum of £38,909 odd. The Claimant's submit that I should make a final charging order. Mr Ogarro submits that I should leave the interim charging order in place and make an order that he pays £400 a month in the meantime, the matter could then be reviewed in the future to see how Mr Ogarro was going.
21. It seems to me that the factors that I need to weigh up in the exercise of my discretion are the prospects of Mr Ogarro paying these sums of money and a proper position of security for the Claimant. At the end of the day it seems to me that if Mr Ogarro pays the £400 a month he is talking about for the next year, that will deal with the question of interest of the judgment rate and will reduce the sum he owes by, by my calculation, something like £100 or £150 per month, which means that a year from now he will have reduced the sum he owes and paid off some of the debt, but the amount will be modest and it seems to me in those circumstances the right thing to do is to make the order a final order and encourage Mr Ogarro to pay as much as he can as regularly and as frequently as he can, rather than making an order that he has to pay a certain sum of money a month.
22. Accordingly, what I will do is I will make the order make a final charging order and I will not require Mr Ogarro to pay anything. The amount he should pay is up to him, but obviously he would be well advised to pay as much as possible. I should also end this by making clear to Mr Ogarro as I did during the course of the submissions, that a final charging order is not the same thing as an order for the sale of domestic residence. The considerations which might apply if there was an application for an order for sale are quite different from the question of whether the final charging order is in place and this is should not be taken to be an order that Mr Ogarro has to sell his domestic home.
(Costs Judgment)
23. I now have to decide what to do about the costs of this exercise. Miss Jamal submits that her clients were much more the winners than the losers. In my judgment she is right about that. I should bear in mind the general principle of costs is that the costs are awarded to the successful party.
24. However, it seems to me that to make an order that awards the Claimants 100 per cent of their costs of this exercise would not be fair on Mr Ogarro. He has succeeded in reducing the sum of money that he owes on reasonable grounds and to that extent that should be reflected in the costs order that I make. I will make an order that Mr Ogarro pays two-thirds of the costs of this hearing, which includes essentially his application to set aside, but also includes the other matters that were raised. That is what I do and I now have to summarily assess them.
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