Litigation round-up March 2023

Class actions

A claim for secret commissions has been allowed to proceed as an opt-out representative claim under CPR 19.6, despite there being differences in the claims and the remedies sought. This liberal approach to the “same interest” test is the first significant analysis of the test since the Supreme Court's decision in Lloyd v Google and could lead to wider use of the CPR 19.6 procedure (Commission Recovery Ltd v Marks & Clerk LLP).

Jurisdiction to vary sealed orders

The Court of Appeal refused an application under CPR 3.1(7) to revoke or vary its final sealed order made in patent infringement proceedings, even though the English court’s order had been overtaken by a retrospective decision of the European Patent Office (EPO). There is no jurisdiction to reopen a final order except in relation to continuing orders such as final injunctions. Various other options available to parties in this position had not been used in this case. The defendants were now only able to challenge the order by applying to reopen it under CPR 52.30 or by appealing to the Supreme Court (Vodafone Group Plc v IPcom GmbH & Co KG).

Draft judgments

Where a judgment is provided in draft to the parties and their lawyers, neither the judgment nor the outcome can be disclosed to a party’s foreign lawyers. The disclosure to the claimant’s US lawyers in this case was therefore a breach of the embargo. Although this breach was potentially punishable by contempt proceedings, there was no need for the court to take further action. There had been no public disclosure and the claimant investigated the breach and disclosed it to the court without prompting (InterDigital Technology Corporation v Lenovo Group Ltd).

Novel claim for image-based abuse

The court awarded the claimant general damages of £60,000, together with special damages of £37,041.61 for consequential financial losses, following the publication of her naked images on a pornographic website. The images were recorded secretly and uploaded by her ex-partner. The judge used the term "image-based abuse" in his judgment, rejecting the term "revenge porn" which suggests that the victim somehow deserved what happened to them (FGX v Gaunt).

Wasted costs orders

The court will only allow a party’s application for wasted costs to proceed against the other party’s lawyers where it can be determined in a simple and summary way with a short hearing. A claim for wasted costs is not appropriate where the allegations against solicitors and counsel amount, in effect, to a substantial professional negligence action. If the lawyer’s client has not waived privilege, the court should be slow to conclude that a lawyer who advanced a case that was struck out as being totally without merit was necessarily acting improperly, unreasonably or negligently (King v Stiefel).