IPCG Knowledge Share: Intellectual Enterprise Court Small Claims Track

Manchester Civil Justice Centre

Author Skip88 Licence Public Domain Source Wikimedia Commons

Jane Lambert

Yesterday afternoon, I attended the Intellectual Property Crime Group Knowledge Share, Introducing the Intellectual Property Enterprise Court Small Claims Track.  That was an online presentation given by Deputy District Judges Nicola Solomion and Richard Vary.  It consisted of 18 slides and lasted just over an hour.  Well over 140 people attended the call at one point.   I noted some familiar names in the Participants' list, including Barbara Cookson, Dids Macdonald and Michael Edenborough.

The presentation began with the observation that the court was now working well with good feedback.  The move to Manchester had been successful.   It had received additional resources which had enabled Deputy District Judge Vary to "rattle through his list."  Waiting times were now quite short.  Many cases were settled through mediation.  More and more hearings took place online.

The presenters gave examples of several cases that had recently been decided.  One was a copyright case in which additional damages were awarded because the defendant had continued to use infringing materials after the proceedings had been commenced and he had attributed copyright to himself.   Another was a passing off case where the defendant adopted the logo and trading style of the claimant council.  The defendant did not defend the claim.  The court awarded the claimant £10,000 in damages.  

Deputy District Judge Solomon reminded the audience that the Intellectual Property Enterprise Court was part of the High Court and that proceedings should not begin with a Money Claim Online.  She also stressed that there were hearing fees in addition to issue fees, which claimants with potentially successful claims had occasionally failed to pay.

Both speakers counselled against the use of artificial intelligence.   They gave an example of a case that had come before Judge Obodai.  An AI system used by the claimant had generated the claim form, lengthy particulars of claim and skeleton arguments and had hallucinated authorities.  The defendants applied to strike out the claim and/or obtain summary judgment.  The claimant was quite unable to justify his claim so the action was dismissed.  In addition to the fixed costs to which the defendants would normally have been entitled, the judge awarded them further costs under CPR 27.14 (2) (g).

The slide show finished just before 15:00, leaving just 4 minutes for questions.  Having learnt that a list of small claims track cases had been circulated to interested parties and was available on demand, I asked why the court's judgments could not be published on BAILII or some other website.  Judge Solomon said that they were of no binding authority, which may be true, but then BAILII publishes the decisions of many other tribunals, including Nominet, which is not even a court and the DIFC Courts, which are not in the UK.

I have to say that  I am surprised that the small claims track is not even more popular.  Before the Woolf Reforms and the  Access to Justice Act 1999, I used to carry instructions to apply for or oppose two or three applications for interim injunctions almost every Manchester motion day.  Not infrequently, I was sent with at least one set of similar instructions to Leeds, Liverpool or Preston.  The parties to those disputes tended to be small businesses.  In many cases, they were individuals.

The proceedings nearly always revolved around the fight for the interim injunction.  Whichever party failed to achieve or resist the injunction application settled by contributing a few hundred pounds to the successful party's costs.  There was hardly ever a trial, much less an inquiry as to damages or account of profits. Summary assessment of costs, the abolition of legal aid for most business disputes and the need to appoint a supervising solicitor for a search order after Universal Thermosensors v Hibben put paid to all that.   

The small claims track cannot award an interim injunction, but a trial can take place expeditiously at the end of which the court can grant a perpetual injunction.  The costs that the small claims track can award are about the same as the typical settlement before summary assessment.  In short, the small claims track restores access to the courts to artists, designers and small business owners that the Civil Procedure Rules and Access to Justice took away at the turn of the century.

I have written a lot of articles on the small claims track, which can be accessed from the "Small IP Claims" resource page in the second scroll-down menu.  I have just updated it to include this article.  Anyone requiring further information should call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form at any time.