Richard Perry v F H Brundle (a private unlimited company), Betafence Limited and Britannia Fasteners Limited, England and Wales High Court (HHJ Hacon), London, UK, 25 September 2015, Neutral Citation Number:  EWHC 2737 (IPEC)
The Defendants, F H Brundle and others, brought an action to strike out a claim in its entirety or for a summary judgment in their favour. They also applied for an extended civil restraint order (‘CRO’) against the Claimant, Mr Perry, or, in the alternative, a limited CRO.
HHJ Hacon struck out the proceedings on two grounds, although one would have sufficed. The first was that the cause of action vested in the Official Receiver, not the Claimant. The second was that the claim was res judicata. HHJ Hacon also considered whether he could grant a CRO, which he eventually did, discussing the jurisdiction of the IPEC in the process, as well as the circumstances in which one ought to be granted.
The Claimant owned a patent and alleged that the Defendants infringed it. The judgment in the First Action on 6th March 2014 made it clear that there was no infringement, and permission to appeal had been refused by Floyd LJ. Mr Perry nonetheless renewed his application for permission to appeal at an oral hearing, which was again dismissed on 3rd February 2015, making it clear that there was no infringement and that the claim was res judicata. An order for costs was also made against the Claimant for approximately £50,000, which he was unable to pay and later a bankruptcy order was also made against him.
By 2nd June 2015, Mr Perry knew (or should have known) that, on account of the Bankruptcy Order against him, any cause of action based on the patent was vested in the Official Receiver. Notwithstanding the Bankruptcy Order, Mr Perry applied to continue on as director. District Judge Britton described this as ‘almost incomprehensible’ and ‘entirely devoid of merit’.
On 18th September, the Claimant applied for permission to appeal against the bankruptcy order, an appeal which HHJ McCahill QC described as ‘totally without merit’ and ‘doomed to fail’. Mr Perry’s claim that the Defendants infringed his patent was therefore struck out as the cause of action was vested in the Official Receiver and the claim was res judicata. Mr Perry again attempted to make 4 applications; however, they were refused on the basis that there was no cause of action.
In his judgment, HHJ Hacon addressed the question of his jurisdiction to grant a CRO because they are only to be granted by the High Court. Two factors needed to be considered. First, the CPR provisions in relation to granting an extended CRO were in force before the IPEC came into existence. This means that the draftsman could not have had express intent about its jurisdiction, either way. Second, IPEC judges in previous cases had never seen their role as preventing them from granting such relief (KL Communications Ltd v Fu  EWHC 2026 (IPEC)). A Judge of the High Court was therefore not be limited to a puisne Judge but could also include a Judge sitting in the IPEC. This meant there was no jurisdictional issue of him granting the extended CRO.
In the same judgment, HHJ Hacon examined the law on extended CROs. Taking account of previous case law, he outlined four conditions that need to be fulfilled. First, a graduated and proportionate response is required. Second, a minimum of three claims/applications must have been totally without merit. Third, such behaviour is likely to continue. Finally, ‘totally without merit’ can be determined retrospectively, if necessary. On the facts, the Claimant fulfilled all of these conditions and therefore, HHJ Hacon granted an extended CRO.
Read the judgment (in English) here.
Head note: Nicholas Fox, Simmons & Simmons LLP