- Court of Appeal—permission to appeal with reference to CPR 3.1(7) (Cole v Howlett)
- Practical implications
- How did the issues arise?
- Why was the judge's first order one which could lead to the claim being struck out?
- Why did the judge vary his order under CPR 3.1(7)?
- Why did the Court of Appeal give the defendants permission to appeal against the variation of the strike out order?
- Court details
Dispute Resolution analysis: The claimant had brought copyright proceedings without having the copyright vested in him, owing to his earlier bankruptcy (when the copyright vested in the trustee in bankruptcy). He had failed to disclose the copyright to the trustee and it was only this failing which had allowed him to commence the claim (until the failing was discovered). This was abuse and the claim would be struck out unless the real owner of the copyright (the trustee) intervened to take it over. However, when the trustee then sold the copyright to the claimant (even though loss or destruction of the bankruptcy file mean that the sale price, less costs, was ultimately returned to the claimant), Peter Smith J acceded to the claimant’s application for permission to amend the claim now that he had made good the title issue. The judge considered that the claimant had cured his earlier abuse and that there had been a sufficiently material change in circumstance to allow him to vary his original order under CPR 3.1(7). The Court of Appeal granted the defendants permission to appeal on the basis that their grounds of appeal—that the abuse had not been purged, that the judge had failed to take into account the prejudice to the defendants, that there had been no material change in circumstance—were all properly arguable and had a real prospect of success.
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