Dr Vanessa Hill v Touchlight Genetics Limited & Ors
[2024] EWHC 1913 (Pat)
Flitcraft Limited & Ors v Philip Price & Anor
27 February 2024
[2024] EWCA Civ 136
Court of Appeal
Two companies fought over patents. One company (Supawall) initially messed up by not including the right person in the lawsuit. The judge let them fix it. A second fight was about who pays the legal bills. The judge mostly ruled fairly, making the dishonest company pay more. The Court of Appeal agreed with the judge's decisions.
Key Facts
- •Appeal against judgments in intellectual property litigation between Flitcraft and Price/Supawall.
- •Dispute involved patent infringement (GB 2415714 and GB 2436989), copyright infringement, and passing off.
- •Judge initially dismissed Price's claims due to lack of title; Supawall's claim partially succeeded but lacked proper joinder of patent proprietor.
- •Subsequent amendment allowed Supawall to join the Official Receiver (OR) as patent proprietor.
- •Appeals concerned the allowance of the amendment, costs apportionment, and construction of the exclusive license.
- •Judge made serious adverse findings against Price and Middleton's evidence, deeming it untruthful.
Legal Principles
Section 67(3) of the Patents Act 1977 requires joinder of the patent proprietor in proceedings by an exclusive licensee.
Patents Act 1977
Court has power to allow amendment to add a party even after judgment.
In re Pablo Star Limited [2017] EWCA Civ 1768
Appellate court will only interfere with discretionary decisions if flawed (misdirection in law, procedural unfairness, irrelevant/irrelevant matters considered, plainly wrong).
ABP Technology Limited v Voyera Turtle Beach Inc [2022] EWCA Civ 594; Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB)
CPR r. 44.2 governs costs orders; generally, the unsuccessful party pays costs.
CPR r. 44.2
In cases of late amendments substantially altering the defence, the amending party typically pays costs up to the amendment date, unless special reasons exist.
Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137
Dishonest conduct in litigation may result in cost penalties, including indemnity costs.
Summers v Fairclough [2012] UKSC 26
Outcomes
Flitcraft's appeal dismissed.
Judge's decision to allow amendment to join the OR was within his discretion; Section 67(3) is procedural, not substantive; Supawall's claim was independent of Price's fraudulent conduct.
Costs appeal largely dismissed.
Judge's apportionment of costs between Price and Supawall's claims was justified; separate claims warranted separate cost orders; 60/40 split reasonable given the issues involved; Supawall's conduct and Price's fraudulent claim were properly considered in cost reductions.
Interim payment of £12,775.50 against Supawall set aside.
Supawall is likely to be a net recipient of costs; interim payment unnecessary.
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