Thursday, 31 May 2012

Regenerate Pennine Lancashire

Last week I spoke about Enforcement of Intellectual Property Rights at QualitySolicitors Jackson & Canter's symposium on "Making Money from Intellectual Property", One of my fellow speakers was Brian Corbett, Innovation and Technology Advisor at Regenerate Pennine Lancashire.

Regenerate Pennine Lancashire is an economic development company  owned by Lancashire County Council and the borough councils in Pennine Lancashire: Blackburn with Darwen, Burnley, Hyndburn, Pendle and Rossendale. Its  governing body is made up of the leaders from each of the councils and by a board mostly made up of the councils’ chief executives and representatives from the private sector, including our Chairman, Dennis Mendoros.  Regenerate Pennine Lancashire has assisted over 3,727 businesses and secured over 5,500 jobs. It has attracted over £120 million of public and private sector funding to the area.

An idea of the company's work can be gleaned from its annual report for the last year of the LEGI (local enterprise growth initiative) programme and its business plan for 2012-2013.

Regenerate Lancashire's website has:
  • a directory of finance schemes and other publicly funded services available in the Pennine Lancashire area;
  • a calendar of future events;
  • a library of articles and other resources
  • facts and figures about Pennine Lancashire
and other information,   The company also publishes a regular newsletter.   This is the May 2012 edition. 

If anyone wants to discuss this article further he or she should call me on 0161 850 0080 or use my contact form. He or she can also contact me through Facebook, Linkedin, twitter or Xing.

Friday, 11 May 2012

The North West Fund: Inspiring Entrepreneurs and Financing Ambitions

I last mentioned the North West Fund on 21 Dec 2010 at the worst moment of the current economic cycle when I described it as "a rare piece of good news" that had wafted into my inbox (see "North West Fund" 21 Dec 2010).   The fund is now 15 months into the 5 year investment programme and the Chief Executive Officer and the managers of the 6 funds that I mentioned in that article will report on progress at Daresbury Science and Innovation Campus immediately after the Daresbury breakfast meeting on 18 May 2012.

Unfortunately the event is now fully booked but I will be there.   If any of my readers wants to know what happens or would like to make contact with one of the fund managers please let me know in good time by calling me on 0161 850 0080 or contacting me through my contact form.

Contrary to popular belief, barristers are not just interested in going to court or writing erudite opinions on esoteric points of law. We like to use our negotiating skills and insights into how the law will deal with new technologies to help business grow.

Sunday, 6 May 2012

Contempt of Court: Westwood v Knight

I wrote about Westwood v Knight [2011] EWPCC 8 in this blog last year because the defendant, Tony Knight, came from Manchester (see "Trade Mark, Copyright and Passing Off: Westwood v Knight" 1 April 2011). In that case His Honour Judge Birss QC found that Mr. Knight had infringed Dame Vivienne Westwood's copyrights and trade marks and had passed off his goods as and for hers.  According to Westwood v Knight (No 2) [2012] EWPCC 6 (6 Feb 2012) the judge had granted injunctions, orders for delivery up of infringing goods upon verification under oath and other relief to the claimant.

It appears that Mr. Knight paid scant regard to those orders because the judge found no less than 15 breaches in Westwood v Knight (No. 3)  [2012] EWPCC 14 (24 April 2012).   These included:
  • Failure to deliver up infringing items to the claimant's solicitors;
  • Failure to serve affidavit relating to delivery up of infringing items on the claimant's solicitors;
  • Failure to transfer the domain name to the claimant;
  • Infringement of registered Community trade mark TOO FAST TO LIVE TOO YOUNG TO DIE (+ device) and passing off by use (of the words, the device and the words and device together) in trade including (i) on the defendant's website and (ii) as the name of a limited company;
  • Infringement of the copyright in the claimant's TOO FAST TO LIVE TOO YOUNG TO DIE device;
  • Infringement of registered Community and UK trade marks for the Vivienne Westwood Orb mark and passing off by use in trade including the Defendant's website;
  • Infringement of the copyright in the claimant's VIVIENNE WESTWOOD + Orb device; 
  • Passing off by use of WESTWOOD in trade including the defendant's website; 
  • Passing off by use of WORLD'S END in trade including the defendant's website;   
  • Passing off by use of LET IT ROCK in trade including the defendant's website; 
  • Passing off by use of ARM & CUTLASS device in trade including the defendant's website; 
  • Passing off by use of I ♥ CRAP device in trade including the defendant's website;  and
  • Passing off by use of the Lips device in trade including the defendant's website.
His Honour made those findings in Mr. Knight's absence because Mr. Knight failed to attend the hearing of Dame Vivienne's application for his committal for contempt. Indeed, he failed to attend two previous hearings of the application on 20 Dec 2011 and  3 Feb 2012.

Because there were once different sets of rules of court for the High Court and the County Courts, committal proceedings in the High Court are governed by Order 52 of the Rules of the Supreme Court as preserved by Schedule 1  to the Civil Procedure Rules and those in the County Courts by Order 29 of the County Court Rules as preserved by Schedule 2.  There is also a Practice Direction which is common to both provisions (PD RSC 52 and CCR 29 - Committal Applications)

Rule1 (1) of Order 29 provides:
"Where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order or any subsequent order, or where a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the Debtors Acts 1869 and 18781 and to the provisions of these rules, the judgment or order may be enforced, by order of the judge, by a committal order against that person or, if that person is a body corporate, against any director or other officer of the body."
O29 r 1 (2) and (3) sets out a number of conditions that have to be fulfilled before such a person can be committed. The first is that a copy of the judgment or order should be served personally on the person required to do or abstain from doing the act in question and also, where that person is a body corporate, on the director or other officer of the body against whom a committal order is sought (O29 r1 (1) (a) CCR). Secondly, if a judgment or order requires that person to do an act, rule 1 (1) (b) requires the copy to be served before the expiration of the time within which that person is required to do the act. Thirdly, the judgment or order must be indorsed with a penal notice (O29 r 1 (3) CCR). 

If the person served with the judgment or order still fails to obey it, O29 r 1 (4) CCR provides that the judgment creditor may issue a claim form or, as the case may be, an application notice seeking the committal for contempt of court of that person which claim form or application notice shall be served on him personally.   The application notice is a pons assinorum that causes many committal applications to fail.   O29 r1 (4A) requires the application notice to:
"(a) identify the provisions of the injunction or undertaking which it is alleged have been disobeyed or broken;
(b) list the ways in which it is alleged that the injunction has been disobeyed or the undertaking has been broken;
(c) be supported by an affidavit stating the grounds on which the application is made,
and unless service is dispensed with under paragraph (7), a copy of the affidavit shall be served with the claim form or application notice."
It is amazing how often applicants get that provision wrong. 

An application can sometimes be saved by O29 r1 (7) CCR which provides that:
"Without prejudice to its powers under Part 6 of the CPR, the court may dispense with service of a copy of a judgment or order under paragraph (2) or a claim form or application notice under paragraph (4) if the court thinks it just to do so."
Paragraph 10 of the Practice Direction also provides: 
"The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."
In Westwood not all the evidence against Mr. Knight had been provided by affidavit as required by O29 41 (4A) (c) and paragraph 3.1 of the Practice Direction.  Judge Birss QC waived that defect on those grounds by considering only the acts of contempt that had been proved by affidavit evidence.

Mr. Knight's absence presented a number of difficulties for the judge. First, Mr. Knight had complained of depression and submitted a sick note from his doctor stating that he was suffering from anxiety and depression and would not be fit for work for 4 weeks. The judge reflected that the application had already been adjourned twice, that there was no evidence that Mr. Knight was unfit to attend court or conduct his own defence and that no useful purpose would be served by adjourning the hearing.

The second difficulty presented by Mr. Knight's absence was that the judge had to be satisfied that he had deliberately breached the court's order. The only possible excuse was that Mr. Knight had lodged an application for permission to appeal which the Court of Appeal had considered in the interval between the February and March hearings.  The judge observed that that of itself did not excuse non-compliance with an order since the order had not been stayed pending the appeal but it was possible that Mr. Knight might not have been aware that that was the case. That uncertainly was removed partly by the refusal of permission to appeal and partly by the dicta of Mr. Justice Christopher Clarke in Masri v Consolidated Contractors International Company SAL and Others [2011] EWHC 1024 (Comm) (5 May 2011) at paragraph [155]:
"In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong."
Judge Birss QC concluded at paragraph [38] of his judgment that it is not necessary to show that Mr Knight appreciated that what he was doing was a breach of the order. If Mr Knight knew of the terms of the order, acted or failed to act in a manner which breached the order and knew of the facts which made his conduct a breach, the contempt will be proved.

The third difficulty was whether Mr. Knight should be sentenced for his contempt in his absence. In Taylor v Persico (unreported 27 Jan 1992) the Court of Appeal had held that, once contempt had been proved, "no penalty should be imposed before the contemnor had been given an opportunity to address the court as to penalty and to apologise to it for the contempt."  There was, of course, no guarantee that Mr. Knight would attend a sentencing hearing.   The obvious solution was a bench warrant but there appeared to be no authority as to whether a county court judge had jurisdiction to make such an order.   Relying on s.38 (1) of the County Courts Act 1984, the judge decided that he had.   In paragraph [149] of his judgment, he said:
"i)    This court has the power to issue a bench warrant to secure Mr Knight's attendance at court.
ii)   Mr Knight should be before the court when I decide how to punish him for the contempts of court he has committed. I will then be able to hear any mitigation which may be put forward by him or on his behalf.
iii)   Mr Knight would be well advised to obtain legal assistance in this matter. I strongly urge him to do so and to do so urgently.
iv)   Mr Knight should attend the handing down of this judgment on 24th April 2012 in order to present his mitigation. If he attends then there will be no need to issue a bench warrant.
v)   If he does not attend, and in the absence of any compelling reason why not, it is likely that on 24th April 2012 I will issue a bench warrant to bring Mr Knight before the court to decide on the proper punishment for his contempts of court."
If anyone wants to discuss this case further he or she should call me on 0161 850 0080 or use my contact form. He or she can also contact me through Facebook, Linkedin, twitter or Xing.

Tuesday, 1 May 2012

Cheshire and Warrington LEP

Cheshire and Warrington LEP

Cheshire and Warrington LEP covers the areas served by the Cheshire East, Cheshire West and Chester and Warrington  unitary authorities.  This includes Chester, Congleton, Crewe, Ellesmere Port, Macclesfield, Nantwich and Warrington. It has a population of 890,000 and had a GVA of £18.5 billion in 2008.

Its board was recognized on 24 March 2011.   It is chaired by Christine Gaskell of Bentley Motors and includes Howard Hopkinson, chair of Harman Technology, Martin Ashcroft of Tata Chemicals, Robert Davis if EA Technology, Sara Mogel of West Cheshire College, Louise Morrissey of Peel Holdings, Graham Ramsbottom of The Grosvenor Estate, Nigel Schofield of Schofield Diamond Travel, Pete Waterman of Pete Waterman Entertainment and Professor T J Wheeler of Chester University as well as the leaders of the three local authorities.

According to its Business Plan for 2012 to 2015 the Board's vision for Cheshire and Warrington is

"to be the best performing sub-regional economy outside the Greater South East – the preferred location for business because of our investment locations, connectivity, highly-qualified workforce and excellent quality of life. The aim is to create an economic brand that transcends the local and is truly national and international, with strong recognition of our location and offer. Atlantic Gateway and Daresbury Science and Innovation Campus both offer real prospects for economic growth. Cheshire and Warrington LEP will maintain its presence on their boards."
Its priorities include:

  • developing a skilled and productive work force through advanced apprenticeships matched to employers' needs;
  • business investment particularly for start-ups, exports and inward investment;
  • infrastructure development including high speed rail and superfast broadband;
  • deregulation;
  • assisting the rural economy; and
  • promoting the sub-region generally through a Cheshire and Warrington Ambassador's programme.
Several of those programmes have their own support officers - Julian Cobley for broadband, Carol Young for business investment and Andy Seddon for programme and project funding,

The sub-region hosts the Daresbury Science and Innovation Campus which includes the Daresbury Laboratory and Cockcroft Institute.  This campus is a major engine of growth and recovery.  I and other members of IP North West attend the Daresbury breakfast meeting regularly and have helped a number of businesses in the area.   If you are from Cheshire and Warrington and want to discuss how we can help, please call me on 0161 850 0080 or use my contact form. You can also contact me through Facebook, Linkedin, twitter or Xing.