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The first case management conference ("CMC") has taken place in the Patents County Court ("PCC") since the new PCC rules came into force on 1 October 2010. The judgment of HHJ Birss QC in the case of Dame Vivienne Westwood OBE v Anthony Edward Knight [2010] EWPCC 016 gives a clear indication that he is seeking to ensure that the new regime is effective in streamlining procedure, cutting out unnecessary evidence and reducing costs.
It is unusual for a judgment following a CMC to be published, but HHJ Birss QC decided to do so because he wanted to give guidance to prospective users of the court on how he will deal with case management issues in the PCC under the new rules.
This case concerns the famous British fashion designer Vivienne Westwood, who alleged trade mark infringement, passing off and copyright infringement against Mr Knight, an individual who sold fashion clothing and accessories over the internet. The case was started in the High Court before being transferred to the PCC on 1 October 2010.
The Statement of Truth for the Particulars of Claim had been signed by Ms Westwood's solicitor in the form "the claimant believes". Whilst this is standard under High Court rules, the new PCC rules state that the Statement of Truth must be signed by a person with knowledge of the facts alleged, or by persons who between them have knowledge of the facts alleged. HHJ Birss QC therefore agreed with the submissions made on behalf of Ms Westwood that the Particulars of Claim could be amended so that they could be verified by a Statement of Truth appropriate to the PCC. The importance of this step should not be underestimated, particularly in view of the fact that, under the new procedures, the Statements of Case can also be regarded as evidence.
In addition to these PCC "housekeeping" matters, under the new rules, the PCC will, at the first CMC, identify the issues and decide whether to make an order for, amongst other things, disclosure of documents, exchange of witness statements, expert reports, skeleton arguments and cross examination. HHJ Birss QC closely analysed the statements of case, reviewing each issue and deciding whether to make any further orders in relation to each specific issue prior to trial. The judge applied the "cost–benefit" test applicable under the new rules when deciding whether or not to allow the parties to adduce further evidence. For example, he decided to allow Ms Westwood to adduce evidence on her brands and goodwill, whilst agreeing that there was no need for any evidence on Ms Westwood's reputation as a fashion designer. She was also given permission to submit evidence of actual confusion (such as feedback on eBay which Ms Westwood claims supports her case that customers bought goods from Mr Knight in the mistaken belief that they had been produced by her), but not survey evidence which did not meet the cost-benefit test. The judge did not give Mr Knight permission to adduce further evidence, and he had not applied to do so.
No order was given for disclosure, as neither side had sought one and the Judge saw no need for it. Similarly, neither side sought to rely on expert evidence or to permit cross examination of witnesses, therefore no such orders were given. The judge did order that skeleton arguments could be filed in advance of the trial, which will take place on 8 March 2011 and will last not more than one day. Judgment is timetabled for 22 March 2011, which is less than six months after the case was first transferred to the PCC.
| In practice: This judgment is a useful indication of the case management decisions that HHJ Birss QC will take in the PCC under the new streamlined procedure. If a similar approach is adopted going forward, cases in the PCC are likely to become less expensive and come to trial more quickly. Potential PCC litigants should note the judgment and align their expectations accordingly. |