Monday, 27 August 2012

Educating Samuel No. 3: The Patents County Court

 Bad news travels fast so they say, and what could be worse for my very occasional instructing solicitor Samuel Pepys than that Gower Ashgate had commissioned me to write a second edition of "Enforcing Intellectual Property Rights".

"How do,Young Samuel" quoth I while waiting to be served at Mr. Thomas's. "Did you have a nice holiday?"
"How did you know I'd been away?" replied Sam with an expression that matched the "To Let" signs that are somewhat more common than they once were in central Manchester.
"Oh just a guess" I replied. "Do you ever do any work for Tebbits?"
"Work life balance" said Sam. "Besides I'm not with Tebbits any longer. I've joined LovelyLawyers Dewey Screwem & Howe."
"Are they anything to do with Sioux Grabbit & Wrunne?" I asked.
"Well they are part of our alliance but they are called LovelyLawyers Sioux Grabbit & Wrunne these days."
"What's lovely about  Sioux Grabbit & Wrunne?" I asked. "They are the worst payers in Lancashire by a country mile."
"Well we are now part of a nationwide brand to compete with Tesco law and all these other alternative business structures that are breaking out everywhere like a rash.  What with Stobart Barristers and QualitySolicitors not to mention Riverview Law.  I don't know what will become of the profession.  That is if it is still a profession,   Some people are even talking about a legal industry."
"And I hear you are writing a second edition of your book.  You made me look a right Charlie in the first one."
"I did no such thing" I protested. "I simply repeated verbatim what you said in conference."

Samuel choked a bit and then continued: "Well since I've bumped in to you, do you mind if I pick your brains?"
"Oh yes" I said cautiously since "picking your brains" is solicitor speak for "I want a free conference."   "Why don't you have a word with Fred in the morning,"
"I'm not yet in funds", said Sam, "but as soon as I am I shall send the papers to you."
"Fire away", I said resignedly computing the fortune that I would receive if I had a pound for every time a solicitor said something like that to me.
"Well I have a design right and breach of confidence claim in the Manchester District Registry. Sebastian Goat is on the other side."
"Oh what's happened to him?" I asked. "Wasn't he with Hannibals?"
"Shh" replied Samuel. "We don't  talk about such things. Tempting fate, you know.  There but for fortune go I.   He's with Portly LLP now,"
"Oh I see." I responded thinking that Portly was a very good name for the members of a firm that were not exactly sylph like. "Well I think he's very sensible.   Why didn't you issue out of the PCC in the first place?"

"BUT IT'S IN LONDON!" bleated Samuel with a pained expression. "For the last 30 years you have been trying to build up IP expertise in the North.   What about all those talks you gave to the Law Society and all those articles you wrote about IP litigation in the district registry. My old principal remembers your debating with Henry Carr QC (as he now is) about IP litigation in the North in the old Manchester Club in 1988.
"All very true" I replied. "Before the Palatinate Court merged with the Chancery Division in 1972 you could actually bring a patents or a registered designs claim before the Vice-Chancellor in Manchester and there are at least two such patents cases in the RPC but, as I say, times have changed.   There are now considerable advantages for small and medium enterprises in litigating in the PCC."
"What advantages?" asked Samuel. "Surely it is cheaper for two Mancunian businesses with two Mancunian law firms and if we use local counsel..........."
"I thought you said you were sending the work to me as soon as you were in funds" I interjected.
Samuel reddened.
"Well perhaps you will ask the barrister you have already consulted." I replied icily. "And if he or she doesn't know you can refer him or her to my article on "The New Patents County Court Rules" (IP/IT Update 31 Oct 2010).
"You've written an article" enquired Samuel, his jaw dropping to an alarming extent realizing that he could have saved his client a not inconsiderable conference fee and perhaps even got the right answer. "What did you say in your article?"
"Well I mentioned that costs were limited to a scale for each stage of the litigation and that there was a global cap of recoverable costs of £50,000 unless a party had behaved badly.   That is made possible because the trial is limited to one or, at the most, two days.   The judge controls the evidence to be admitted and you can only produce oral or documentary evidence on specific issues. And above all there is a very strict timetable and woe betide a solicitor who lets it slip. All applications are made in writing unless the judge directs otherwise. Oh, and you have to plead that you have or have not complied with the Practice Direction - Pre-Action Conduct in your particulars of claim.   You will find the relevant procedural changes in Section V of CPR Part 63 and the corresponding section to the Part 63 Practice Direction. The new rules as to costs are at Section VII of CPR Part 45 and Section 25C of the Costs Practice Direction."
"Oh thank you very much, John I mean Jane" replied Samuel muttering under his breath "Bloody know all. He's got worse since his sex change. Hell will freeze over before I instruct him (or is it her) again."
"But surely it is still better for all concerned if the trial takes place in Manchester. After all it is not fair to the parties and witnesses to drag them all down to Wood Green."
"Cor!" I replied. "You really are showing your age, Sam. The Patents County Court moved to Central London in the 1994 and it now sits in the Rolls Building just down the corridor from the Patents Court and the rest of the Chancery Division. "But para 1.5 of the Patents Court Guide still provides for the judges to sit outside London for the convenience of parties and saving costs."
"So there's no real advantage in issuing proceedings out of the Manchester District Registry or the County Court?"
"I can't think of any" I replied. "And there will be even less reason when the small claims track is introduced in a couple of months time."
"The what?" asked Samuel.
"You know you could have learned all about that had you gone to the LES dinner for HH Judge Birss QC last month. I blogged about it in "Red Buses and Tree Surgeons - Birss holds forth in the North" 8 July 2012.
"I can now see why Gower-Ashgate have asked you to update your book" replied Samuel.
"Yes and I am going to include this conversation at the end of Chapter I together with lots of new precedents and other good stuff." I added.
Samuel shuddered. He slunk away from the bar and didn't even offer to buy me a drink.