Quantum, in an intellectual property claim, is often difficult to predict at the time a claim is being issued. What are the practical options for those seeking to issue a claim in the High Court?

What is the problem?

In an intellectual property (IP) claim, it is often difficult to predict quantum at the time the claim is issued.

Why does the problem arise?

The difficulty in predicting how much is likely to be recovered in an IP claim should liability be established is, not least, because the extent of the infringement may not be known to the claimant at the time of issue and may only be revealed in subsequent disclosure which is obtained or otherwise in the course of proceedings.

In addition, very often claimants have the option of seeking quantum representing either their damages or an account of the defendant’s profits which is an election made at a later stage in the process after some additional disclosure (essentially the proceedings are split into liability and quantum stages). Ordinarily, the claimant will have little idea about the details of the defendant’s business and what profit the defendant may be making, particularly at the point the claim is issued.

What are the practical consequences?

It is necessary when issuing a claim to give an indication of the amount which is being claimed by the claimant. This is for a number of reasons.

The first is that the court fee payable will depend upon the amount b