IP & IT analysis: This application arose in the context of a claim for infringement of two EU trade mark registrations and a UK trade mark registration in respect of certain activities by the defendants in relation to clothing and shower gels. The claimants applied to add several new defendants into the claim relating to the shower gels, and the court was asked to consider whether it had jurisdiction to hear a claim in respect of the proposed seventh defendant (a company incorporated in Spain), whether the gels claim should be stayed, and whether the trial date should be re-listed. The master concluded that the claimants had reasonable grounds for their claims against all the new defendants. He also held that the court had jurisdiction to hear the claim against the Spanish company, that a separate hearing should be held to determine the issue of the stay, and that the trial should be re-listed on the first available date convenient to the parties after 1 October 2017.

Commercial analysis: Lara Kuehl, barrister at Selborne Chambers, considers the case of J Toomey Moters Ltd and Another v Chevrolet UK Ltd, in which the Commercial Court considered a claim for breach of contract based on alleged express and implied terms of franchise agreements between the parties.

Dispute Resolution analysis: David Willink, barrister at Lamb Chambers, considers the case of Mastercard Inc & Ors v Deutsche Bahn AG & Ors [2017] EWCA Civ 272. In this appeal the Court of Appeal considered the application of the test of whether a new claim ‘arises out the same facts or substantially the same facts as are already in issue’ for the purposes of section 35 of the Limitation Act 1980 and CPR 17.4(2). In doing so, the Court of Appeal overturned the High Court’s decision that it did and therefore refused to apply the ‘relation back’ principle to the new claim.

Dispute Resolution analysis: David Willink, Barrister at Lamb Chambers, considers the case of Dammermann v Lanyon Bowdler LLP. CPR 27.14 provides for very limited costs recovery on the Small Claims Track, including appeals. Some leeway for judicial discretion is provided by CPR 27.14(2)(g), which allows the court to order the payment of further costs by a party who has ‘behaved unreasonably’. In this case (an appeal against an award of ‘unreasonable behaviour costs’ made by a circuit judge on dismissing an SCT appeal), the Court of Appeal adopted the test of ‘unreasonableness’ set out in the case of Ridehalgh v Horsefield [1994] Ch 205 in the context of wasted costs orders, and overturned the award.

IP analysis: Nick Smee, Associate at Browne Jacobson considers the case Koninklijke Philips NV v Asustek Computer Incorporation and others. In a patent infringement claim brought by Philips against a number of parties, one of the defendants, HTC, sought to argue that its activities fell within a covenant not to assert patents against third parties contained in a 1998 patent cross-licensing agreement between Philips and Qualcomm. The agreement was governed by the law of California, which allows for ‘extrinsic evidence’ to be taken into account where a clause is open to opposing interpretations. The Court of Appeal, upholding the decision of Arnold J in the High Court, found that the relevant covenant was limited in scope and did not extend to HTC’s activities.

Dispute Resolution analysis: Matthew Winn-Smith, barrister at Lamb Chambers considers the case Emojevbe v Secretary of State for Transport. The Court of Appeal reviewed the authorities explaining the rule where the power for setting aside a judgment based on the failure to attend a trial is found. The interplay (and tension) is explored between the more lenient test pursuant to Bank of Scotland v Pereira [2011] EWCA 214 and the more stringent test in Levy v Ellis Carr [2012] EWHC 63 (Ch). Essentially, where an application to set aside a judgment pursuant to CPR 39.3(3) is made (rather than merely an application for an adjournment) the court should apply the less rigorous guidance as found in the Pereira case.

Dispute Resolution analysis: Christopher Snell, barrister at No5 Chambers (London), considers the Court of Appeal judgment in SCF Tankers Ltd v Privalov. The Court of Appeal dismissed an appeal against the decision of Males J to award damages to a party who alleged that it had suffered significant loss as a result of a worldwide freezing order. The appellant alleged that the judge had erred in concluding that the freezing order had caused loss and that the respondent had not discharged the burden of proof upon it. Dismissing the appeal, the Court of Appeal held after reviewing the authorities that an enforcing party needs only establish a prima facie case that the freezing order had caused loss. The fact that an application could have been to release secured funds for a specific purpose was not enough to break the chain of causation. Sapna Garg, solicitor-advocate, and freelance PSL at SimplyPSL, also comments on the judgment’s significance.

Dispute Resolution analysis: Christopher Snell, barrister at No5 Chambers, considers the case Bolagsupplysningen OÜ Ingrid Ilsjan v Svensk Handel AB. This is the final ruling of the Court of Justice on the correct interpretation of Article 7(2) of Regulation 1215/2012 on Jurisdiction in civil and commercial matters (Brussels I (recast)). The Court of Justice held that a legal person claiming to have been the victim of untruths published on the internet could, in an exception to the usual defendant domicile rule, commence an action in the Member State where its commercial reputation was most likely to have been harmed. It could not, however, commence an action in any Member State where the information was published and/or accessible.

IP&IT analysis: This case concerns the basis on which a court could make a declaration of non-infringement in a trade mark case where there was an obvious similarity between the mark and sign. Defining and seeing the case through the eyes of the target customer was key. Ashley Roughton, intellectual property consultant at Nabarro, considers the decision in of Skyscape Cloud Services Ltd v Sky plc and others.

IP & IT analysis: This case concerns a defamation claim brought by Mr Malik, a British Muslim and leader of the Communities United Party, against Donald J Trump, the Republican Party nominee for the US Presidential election, in respect of certain statements made by Mr Trump in the course of his campaign. The court ruled that the pleading did not satisfy the requirements of CPR 53 PD 2.3 to plead defamatory meaning. The claim was therefore automatically struck out. The judgment highlights the need to carefully consider the materials relied on when pleading defamatory meaning.

Commercial analysis: The High Court has considered the meaning of ‘defect’ under the Consumer Protection Act 1987. The approach taken by the court in this case conflicts with that taken in the ‘monumental’ (but academically criticised) High Court decision of A v National Blood Authority and represents a major development in the law.

Dispute Resolution analysis: Alex Bagnall, Associate at Just Costs Solicitors, considers the case Green & Ors v SGI Legal LLP. Four former clients of SGI—a firm of solicitors—sought delivery up of papers under s.68(1) of the Solicitors Act 1974 so that their solicitors could advise upon the viability of a solicitor/own client assessment of SGI’s bills pursuant to Section 70 of the Solicitors Act 1974. SGI had agreed to provide some of the documents but indicated that it was not obliged to provide all of the documents sought. On hearing the application, Master Leonard held that the purpose of creating documents for a client's benefit is fulfilled when those documents are given to the client and there was no obligation to provide copies of such documents, even if the client was willing to pay for those copies. The Master accepted that a client who wishes to challenge a solicitor's charges, but who has lost or destroyed the key documents upon which that challenge is based, will obviously be at a disadvantage but it did not follow that the solicitor has any obligation to compensate for that. Nor will a client's inability to supply the required documents with an application for detailed assessment in itself invalidate an application for an assessment. The application was refused.