England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings London EC4A 1NL
		06/02/2012

His Honour Judge Birss QC :

1. This was to be an application by the claimant to commit the defendant for contempt of court. It arises in the following circumstances. On 22^nd March 2011 I gave judgment in this action for the claimant ([2011] EWPCC 8). As a result various orders were made including orders requiring the defendant to deliver up infringing goods in his possession and provide an affidavit that he had done so, orders requiring the defendant to transfer to the claimant various internet domain names, injunctions restraining the defendant for carrying out various acts I found to be acts of trade mark infringement, passing off and copyright infringement and an order for costs. Permission to appeal was refused.
2. The order was served personally, with a penal notice, on 30^th March 2011.
3. The claimant contends that the defendant has not complied with most of these orders. Mr Ward who appears for the claimant instructed by Taylor Wessing submits that the defendant is systematically flouting the orders of the court. No delivery up has taken place, no affidavit has been provided, no transfer of the domain names has taken place, no costs paid and the defendant is, he contends, carrying out numerous acts which are a breach of the injunctions.
4. The claimant issued an application for committal on 26^th October 2011 and it was served personally on the defendant on 31^st October 2011 by Mr Curtis, a process server.
5. The Patents County Court has the power to commit for contempt for breach of injunctions or undertakings or orders properly endorsed with a penal notice (see CCR Ord 29). Moreover the patents judge of the Patents County Court is a circuit judge and therefore may make a committal order (Practice Direction RSC 52 and CCR 29 – Committal Applications, paragraph 11(2)).
6. The date set for the hearing of the application was 20^th December 2011. The defendant wrote a letter dated 20^th December stating that he was unable to attend the hearing due to a road traffic accident. His letter offered to send a letter from his GP confirming the matter. His letter also stated that he was in the process of investigating the whereabouts of his appeal bundle which was sent to the courts in April 2011 and also a postal order for the appeal for over £233 which had gone missing. He asked that the case be put on hold until the Parliamentary Ombudsman had carried out an investigation and also until he was medically fit to attend court.
7. At that hearing the claimant submitted that the application should go ahead. The claimant's representatives did not accept that the defendant had filed an appeal bundle in April and did not accept his story about the car accident. Mr Ward submitted that the defendant had a history of non-attendance in these proceedings and also had a history of allegations about lost paperwork.
8. Despite the claimant's submissions I decided to adjourn the application. The adjournment order required the defendant to provide a letter from his GP confirming that he had attended his GP over the car accident and setting out the nature and extent of his injuries. The application was adjourned to 3^rd February 2012.
9. The defendant was ordered to file and serve the GP's letter by 13^th January 2012. He did not do so. In an email dated 17^th January 2012 the defendant wrote to the claimant's solicitor as follows:

Dear [ ] you will not be looking at my private records when I appear in court it will only be seen by the judge not your or your staff Data Protection Act.

The information is not there for you but the judge eyes only also as you a copy of the bundle is be sent to the courts within the next seven days as agreed by the courts who lost the original bundle

In which the court are hand delivering to the appeal courts on my behalf.

10. This email does not excuse the failure to comply with the order of 20^th December. Furthermore the defendant has not even purported to do what he suggests in this email. No attempt has been made to provide his private records to the court.
11. As regards the appeal bundle, investigations with the court administration showed that there was a record of a letter or parcel being received at the court's offices on 14^th April 2011 but there was no trace of what it was. Whatever had been sent has been lost. The defendant was advised to provide a copy of the materials he had sent to the court in April 2011.
12. On 2^nd February 2012 the Rolls Building received a folder from the defendant. The folder includes grounds of appeal bearing a date of 2^nd April 2011. The grounds were addressed to the Chancery Division of the High Court. That is not the correct court to which the defendant needs to apply for permission to appeal. Matters in the Patents County Court are governed by CPR Part 63 and so by paragraphs 3 and 4(b) of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, appeals from final orders are directed to the Court of Appeal. Only appeals from interim orders go to the High Court. The defendant's appeal folder has been passed to the Civil Appeals office for consideration by the Court of Appeal.
13. The folder did not include anything relating to the defendant's car accident.
14. Also on 2^nd February the court received an email from the defendant stating

attached is a sick note for my none attendance at the hearing tomorrow Knight V Westwood at 10:30 please pass over to the judge.

also the new bundle was sent to court yesterday and received today by your dept please confirm receipt of both.

15. Attached to the email was a copy of a Statement of Fitness for Work for social security or Statutory Sick Pay for the defendant signed by a doctor. It provided that his case had been assessed on 2^nd February 2012 and because of depression the doctor had advised the defendant that he was not fit for work for a period of 2 weeks.
16. The claimant's application was called on on Friday 3^rd February 2012. The defendant did not appear and was not represented. Mr Ward for the claimant expressed his client's frustration with the way in which these proceedings were continuing. He submitted that the defendant was still flouting the orders of the court and showed no sign of engaging with these proceedings properly. He pointed out that the defendant had now breached the order made on 20^th December to provide a letter from his GP about the alleged car accident. He contended that even if one interpreted the defendant's email of 2^nd February along with the doctor's note as an application by the defendant to adjourn these proceedings yet again, that application should be refused. I indicated that I would indeed refuse the defendant's application to adjourn this matter and would give my reasons in writing in this judgment.

Reasons to refuse the defendant's application to adjourn on health grounds

17. I do not accept that the defendant has a good reason not to attend the hearing today and/or to seek its adjournment. He has had proper notice of the hearing. It is a very serious matter since it relates to his continued non-compliance with orders of the court. The Statement of Fitness for Work does not establish that the defendant could not attend today's hearing. There is no evidence the doctor was asked to consider whether the defendant could attend court at all.
18. Mr Ward also pointed out that the defendant has shown himself able to conduct email correspondence throughout these proceedings up to and including yesterday. He also reminded me that the defendant had utterly failed to comply with the order made on 20^th December to produce a letter concerning the car accident.
19. I accept Mr Ward's submissions in this regard. This defendant is not engaging with the court's process in a meaningful way. The doctor's note dated 2^nd February 2011 does not, without more, provide a good reason to adjourn this application.

The way forward

20. Mr Ward then turned to address the way forward bearing in mind the defendant's folder which had now arrived with the court service. Mr Ward submitted that the court should be sceptical about the defendant's contention that he had indeed filed this material on 14^th April 2011. He submitted that there was no real evidence as to what the defendant had filed last year and that the defendant's conduct throughout these proceedings meant that he could not be trusted. He also pointed out that the 21 day period for filing a notice of appeal from the order of 22^nd March 2011 would have expired on 12^th April 2012.
21. While I have sympathy with the claimant's position it seems to me that there is no reason to disbelieve the defendant when he contends that the documents in the folder are copies of what he posted in April 2011 and which were lost within the court system. From the defendant's point of view he had made a valid attempt to seek permission to appeal. I will leave aside whether it was out of time or not.
22. It is also clear that one of the reasons the defendant gives for not complying with the orders is that, as far as he is concerned, he has appealed the orders.
23. Mr Ward made the following submissions:

i) He submitted firmly that the defendant's argument that his "appeal" would justify non-compliance with the orders was completely wrong. Once the court has made an order, that order stands and is to be complied with whether or not an appeal is on foot.

ii) Of course if there is a stay pending appeal, or stay pending an application for permission to appeal, that is a different matter but no such stay is in place.

iii) While the matter of the appeal bundle and the appeal does not excuse the defendant's conduct so far, it might have a bearing on mitigation.

24. For reasons appearing below, I do not need to go into any of those matters at this stage.
25. After giving the matter careful thought the claimant decided not to move the application today but to ask to adjourn it for six weeks. The claimant's fundamental interest is in securing compliance with the orders of the court. The claimant is also very concerned about costs. The problem is as follows. If the claimant moves its application now then even if the claimant is successful there will still almost certainly need to be another hearing to decide on sentencing. Adjourning the matter once more allows for the prospect that the matter can be dealt with in one go. That is likely to lead to a saving on costs.
26. Mr Ward submitted that if no permission to appeal by the Court of Appeal is given then the defendant will know that he has no justification for not complying with the orders even in his own terms. He may comply at that stage and costs may well be saved. If permission is given then the matter of a stay pending appeal might also arise.
27. Of course all these matters ought to have been resolved long ago and would have been had the defendant's application for permission to appeal been considered in April 2011. However the fact of the matter is that that did not take place when it should have. That is not the fault of the claimant but it may also not be the fault of the defendant either. The claimant submits that a defendant with a genuine desire to appeal would have taken steps much sooner to correct the problem. Again while I sympathise with that submission, I cannot resolve it one way or the other.
28. Thus for all these reasons rather than proceed today with the prospect of having to return yet again for another substantive hearing, the claimant seeks to adjourn this application for six weeks. I will make that order. The matter will be re-fixed for 23^rd March 2012. I will also take this opportunity to direct that the defendant should file at court and serve on the claimant any evidence on which he wishes to rely on this application by Friday 9^th March 2012.
29. If the defendant is serious about his application for permission to appeal then he has the opportunity to make an urgent application to the Court of Appeal. The six week period gives the defendant ample time to do that. It is also ample time to make an urgent application for a stay of any orders pending appeal if the defendant actually wants to take that course. Whether any of this excuses the defendant's conduct so far and whether and to what extent it might be regarded as mitigation are matters for another day.