Small Claims Track Checklist

Much of the work that I did between 1980 and 2010 was to advise and act for small and medium enterprises from the North of England in claims for copyright, design right and trade mark infringement, breach of confidence and passing off. In many of those cases, a party sought an interim injunction and there was a fierce battle either on motions or Chancery interlocutory applications day or on the hearing of the motion or application for order.

The parties usually lost interest in the case after the injunction was granted or refused. Rarely did a case go to trial and there was hardly ever an account or an inquiry. Sometimes money changed hands to settle a case but it rarely exceeded a few thousand pounds.

Nowadays, most of those cases would fall within the jurisdiction of IPEC ("the Intellectual Property Enterprise Court"). IPEC was established on 1 Oct 2013 as a specialist list within the Chancery Division of the High Court of Justice for intellectual property claims of £500,000 or less which can be tried in no more than two days. Cases are managed tightly by the court and the costs that the successful party can recover from the unsuccessful party are capped at each stage of the proceedings with an overall limit of £50,000.

IP cases other than those involving patents, registered or registered Community designs, plant breeders' rights or semiconductor topographies where the relief sought is an injunction and no more than £10,000 is sought from the other side by way of damages or accountable profits are allocated to IPEC's small claims track. These do not require extensive case management. They can be resolved by a district judge within a few months of the issue of the claim at minimal cost. As the value of the claim is £10,000 or less the fee for issuing the claim form is very low. There is no provision for an interim injunction but nobody has to wait long for judgment which can include a final injunction as well as pecuniary relief. Perhaps most importantly, the costs that the unsuccessful party has to pay the successful party are limited to a few hundred pounds.

Although the practice and procedure of the Small Claims Track were simplified as far as possible to assist litigants in person, the substantive law is the same as in the Multitrack. Parties may still need specialist advice at various stages of the proceedings, especially when drafting statements of case, and specialist representation at the final hearing.

As few IP specialists have any experience of the Small Claims Track in other litigation and as few of the lawyers with experience of the Small Claims Track have any experience of IP, I have drafted this checklist for litigants and their legal advisors. I used it for the first time this morning in a three-way telephone conference with my instructing solicitor and his client and I am about to send it to a patent attorney litigator who asked my clerk to quote for case management conferences and other work that is simply not required on the Small Claims Track.

I should be interested in learning if any other lawyers use it and whether they find it useful. Do give me a ring on +44 (0)20 7404 5252 during office hours or send me a message through this website if you want to discuss this checklist.

Further Reading

13 Apr 2017  Small IP Claims Resource Page