Monday 9 March 2015

Sally Cooper inquires into Damages at IPEC with Hogarth Help

Some weeks have passed since Hogarth Chambers travelled to Manchester (on 26th January 2015) to engage with an appreciative audience on “Current Trends in IP”. So this is a sadly-belated reference to work of Charlotte Scott on “The IPEC – one year on”.
Hogarth Chambers marketing image

A point made by Charlotte was that, of 14 cases reported in the IPEC since July 2014, 7 were damages inquiries or accounts of profits. Further, Charlotte noted SDL Hair Limited v Next Row Limited (and others) [2014] EWHC 2084 (IPEC) as useful on “general principles”. Mr Justice Hacon does indeed, begin “The Law” in the case [paragraph 31] with the firm statement: “I derive the following [nine] principles from authorities in relation to an inquiry as to damages”.

 I pause here to reflect that, but for Charlotte, I would probably have missed the case completely as it concerns damages in the context of “groundless threats of patent infringement”. Being a Trade Mark Attorney (and no longer an Associate of CIPA) I don’t find the time I once did for reading material that has “patent” in its title. I pause to reflect also that it’s good to have the [nine] principles to hand – both for the client who asks “What will I get if I win ?”  and for the client who doesn’t ask but who ought to be advised on the issue anyway. (The Duck quacks just in case you were interested they got £40,500 plus interest )

 To whet the appetite, the first five principles (with references to cases omitted) are:
(1) A successful claimant is entitled, by way of compensation, to that sum of money which will put him in the same position he would have been in if he had not sustained the wrong
(2) The claimant has the burden of proving the loss
(3) The defendant being a wrongdoer, damages should be liberally assessed but the object is to compensate the claimant, not punish the defendant
(4) The claimant is entitled to recover loss that was (i) foreseeable, and (ii) caused by the wrong, and (iii) not excluded from recovery by public or social policy
(5) In relation to causation, it is not enough for the claimant to show that the loss would not have occurred but for the tort. The tort must be, as a matter of common sense, a cause of the loss. It is not necessary for the tort to be the sole or dominant cause of the loss. I end with the thought that it’s good to see “common sense” having a part to play !

Charlotte also referenced the  NGRS v Staham case which delivered £5200 and is blogged on our big sister here.
The Duck thinks you might also like to check out Harman and Burge which applies the same SDL law to another fact scenario and came to £39,701 plus interest. 

It is sad to reflect that IPEC claimants with damages claims of this order will now be required to pay more in claims fees as a result of the court fee rise that came into effect today 9 March 2015. Valuing your claim realistically is more imporatn than ever if you dont want to pay a £10,000 claim fee for an unquantified amount of damages. Litigator duck quietly sails away into the sunset

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