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| The AmeriKat looking fondly over the Rolls Building glowing in autumnal hues |
Opening the proceedings DMH Stallard Partner, Nick Kounoupias briefly summarized the 2010 reform to the PCC which introduced a new streamlined IP litigation procedure with a £500,000 damages cap, a £50,000 costs cap and very active case management hearings. Rosa Wilkinson, Innovation Director at the UK's Intellectual Property Office (IPO) followed. Perching on a side-table in front of the audience, Wilkinson energetically explained that her enthusiasm for joining the panellists on this topic was due to the fact that she is the person responsible for connecting businesses with the IPO so that the IPO is positioned to deliver the tools that businesses need to deliver the growth objectives that are necessary for businesses and the economy.
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| Rosa Wilkinson |
The wonderful Dids Macdonald, CEO of Anti Copying in Design (ACID) turned her attention to a list of issues that she said needed to be addressed in UK IP enforcement to help businesses. She said that although IP had gone "from the fringe to the mainstream" it still required a great deal of awareness on the part of businesses. She said that, following Wilkinson's presentation, it was reassuring to know that Lord Marland is on board, but although she took solace in this and the fact that the UK is the only country in the world to have a dedicated IP minister, she wanted to see IP feature across all governmental institutions not just the Department for Business, Innovation and Skills (BIS) and the IPO. She said that much could be learned from the U.S. example, where President Obama has said that IP is the U.S.'s single most important asset and as a result IP features in almost all of the US trade missions. IP cannot, Macdonald said, be just important to BIS and the IPO - it must be important to the Treasury as well, for example.
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| Dids Macdonald |
Finally, but by no means least, His Honour Judge Colin Birss QC and IPKat favorite was the final speaker. Judge Birss QC again reiterated the big changes to the PCC procedure in 2010 of which the cap on costs was the most significant. He said that in reality the costs awarded in the PCC are never more than £30,000; it is unusual to see costs of above £30,000 and in some cases they are much lower. The point of the new PCC procedure was that costs have to be proportionate to the case and the court was seeing this play out in practice, especially with the more "hands-on" case management process. It was important that businesses realize that the cost-cap does not mean that either party won't spend more than £50,000 on legal costs, its just that they cannot recover more than £50,000 from the other side.
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| HHJ Colin Birss QC |
Judge Birss explained that
"part of the image of the UK justice system is that it is slow and expensive, but what we are doing in the PCC has international significance. It is possible to have a UK approach to justice in a quick, efficient manner. This matters for proposals such as the Unified Patents Court..."It also matters, said the judge, because in the UK our sense of justice is tied up with cross-examination (i.e by not allowing to say someone is a liar without the accused being afforded the opportunity to put the record straight by cross-examination) and disclosure (i.e. that a party is obliged to produce important documents). All of this, which can be assumed to be costly and slow, can be done in an efficient and proportionate manner. The PCC has shown it is possible to do this.
Judge Birss has also noted that there is a demand for an even quicker, more streamlined procedure for lower-value claims - such as those brought by photographers. These claims are generally low value but that does not mean that they are not important. The PCC system, therefore, needs to accommodate to allow for access to justice for these types of claims. As such, new rules for the PCC, to be published on 1 October 2012, will create a new small claims track in the PCC for claims up to £5,000 in value and will essentially act how the High Court small claim tracks works. The cases will be dealt with by the deputy judges of the PCC and the costs that are recovered are limited to the claim form issue fee and a few other small court fees. The small claims PCC track will deal with unregistered Community and UK design rights, copyright, database rights and trade marks (what about passing off?).
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| The illustrious panel this afternoon - courtesy of Dids Macdonald |
Questions from the floor rounded off the proceedings, with proposals from the audience such as plant variety rights being handled by the PCC (apparently they are not?) and infringement of software licences being actionable with a quasi-Money Claim Online type system. Judge Birss took the opportunity of the question session to explain that in certain cases, where the parties agree, he may be prepared to give preliminary views on the case during a Case Management Conference and/or deal with cases on paper (as was done in Hoffmann v DARE). A question from the PRS on whether the PCC was able to refer questions to the Court of Justice of the European Union (the PCC is able to refer) prompted the AmeriKat to ask how the PCC would deal with cost-capping in the case of a reference given that the cost-capping bands would not accommodate such a mechanism. Unfortunately, but not unexpectedly, Judge Birss replied that he could not answer that question. Generally, the PCC would not (given its procedure) be a breeding ground for CJEU referrals although it is possible (and in fact there may well be one). The AmeriKat wonders if any readers have any genius solutions as to how costs of a CJEU reference could shoe-horned into the cost-capping PCC rules.
It is no doubt that two years on the PCC has been a resounding success, in no short part due to its proactive and productive judge. But the PCC will not rest on its laurels and with the impending publication of the new procedure, the PCC is continuing to improve and adapt to the needs of its users. Now if only the Rolls Building did the same, we may just find more elevators (sorry, lifts) in the building to help get our small trial bundles up to the PCC's court room.