INTELLECTUAL PROPERTY
Conflict of laws - civil procedure - intellectual property

Research in Motion UK Ltd v Visto Corporation: CA (Civ Div) (Lords Justice Mummery, Jacob, Mr Justice Mann): 6 March 2008

The appellant patentee (V) appealed against a decision ([2007] EWHC 900 (Ch)) declining jurisdiction and staying the proceedings in respect of V's counterclaim, alleging abuse of the process of the Italian or English court.



V was the owner of a European patent. The respondent (R) commenced a revocation action in the English court and an action claiming a declaration of non-infringement of the UK patent, excluding a particular aspect of some embodiments of its product. R then commenced proceedings in Italy seeking revocation of the corresponding Italian patent, and a declaration of non-infringement of not only the Italian patent but also the corresponding German, French, Spanish, Dutch and Belgian patents.



V served a defence and counterclaim in the English non-infringement action. The counterclaim went beyond non-infringement. It alleged that R was guilty of the tort of abuse of the process of the Italian or English court, on the basis that R had started the Italian action seeking relief in respect of designations other than the Italian designation deliberately, with a view to preventing any infringement action being taken in respect of those designations in the relevant jurisdictions, and that if R had genuinely wanted such claims determined expeditiously, it could have brought them in the English proceedings. On the basis of an undertaking by R to discontinue the English non-infringement action, the English court declined jurisdiction and stayed V's counterclaim on the ground that the counterclaim and the Italian proceedings were related proceedings in respect of which the Italian court was the court first seised under article 28 of regulation 44/2001.



V submitted that prior to the discontinuance the English action, including the defence and counterclaim, and the Italian proceedings were related proceedings within article 28 and the English action was the first in time, and that accordingly if there had been no discontinuance there should be no stay.



Held: the English and the Italian proceedings were not related within the meaning of the regulation. The exercise of seeing whether actions were related might well require the court to look beyond the claim documents and into the defences. In the present case, that feature potentially gave rise to an oddity because the defence relied on post-claim matters, namely the commencement of the Italian proceedings. However, although the test of first seisin was largely mechanical, the application of article 28 required an assessment of the degree of connection, and then a value judgment as to the expediency of hearing the two actions together to avoid the risk of inconsistent judgments. Any possibility of inconsistent judgments did not mean that proceedings were inevitably related.



Article 28 left it open to a court to acknowledge a connection, or a risk of inconsistent judgments, but to say that the connection was not sufficiently close, or the risk was not sufficiently great, to make the actions related for the purposes of the article. The substance of the English proceedings was a declaration about an English patent and a particular product. The substance of the Italian proceedings was other designations, but not focusing on the same product. The abuse of Italian process was a link between them, but it was the only link; it was only in relation to that point that there was a risk of inconsistent judgments. Article 28(3) did not require the court to find that any possibility, no matter how small the point, required the conclusion that the actions were related. The area of potential conflict was not sufficiently great to lead to the conclusion that expediency would require one trial even if it were theoretically possible.



Appeal dismissed.



Henry Carr QC, Adrian Speck (instructed by Taylor Wessing) for the appellant; Robin Dicker QC, Tom Hinchliffe (instructed by Allen & Overy) for the respondent.





HOUSING

Local government - homelessness - statutory reviews

Hassan Omar v Westminster City Council: CA (Civ Div) (Lords Justice Waller, Tuckey, Sedley):

3 March 2008

The appellant (O) appealed against a decision of a judge upholding the respondent local housing authority's finding that accommodation offered to O and his family was suitable and that its obligation to house them was thereby discharged.



The local authority had accepted that O and his wife and newborn son were homeless and that it was obliged to accommodate them. O was offered a property over nine miles away from the authority's area but he declined to accept it as suitable, based on the medical condition of his son, who had been born prematurely. In support of his contention, O provided the authority with his son's 'discharge summary' from the hospital, which recorded that the baby had been born prematurely and should be seen weekly at a neo-natal clinic.



The local authority contended that the property was not unsuitable and notified O that its obligation to house the family was at an end. O sought a review on the ground that the offer of accommodation was not suitable. O reiterated that his son had to attend regular clinics for blood tests and stated that his wife was suffering from stress and that they ought not to move away from the medical and family support network necessary for a premature baby. Following the local authority's request for information, the hospital sent a further letter that repeated that O's son had been born prematurely, but recorded that no developmental problems had so far been detected and that the family would be no less able to cope than that of any other with a new baby. The reviewing officer, having taken account of the hospital's letter, upheld the local authority's decision that the accommodation was suitable and that its obligation was discharged. O appealed.



The judge found that, in determining whether the accommodation offered was suitable, the reviewing officer had been entitled to take account of the factual position as at the date of the review, which he had done, in the light of his reliance on the hospital letter. The judge also found that while the determination whether the local authority had discharged its housing obligation had to be judged on the facts at the time of its decision, there was no point in sending the matter back for rehearing, as the outcome would be the same in any event. It fell to be determined whether the material to which a reviewing officer was to have regard at the time of his decision was either that at the date of review, or that at the time of the local authority's original decision.



Held: the question as to what facts were to be taken into account at the time of a review decision depended on what was being reviewed and would be dictated in the light of what fairness required and common sense. A reviewer was entitled to have regard to facts that had come to light since the original decision and prior to the review if those facts had existed at the time of the original decision, Osseily v Westminster City Council [2007] EWCA Civ 1108, (2007) 151 SJLB 1298 applied. Where a housing authority took the view that suitable accommodation had been offered and its duty to house had ceased, the correct question for the reviewer was whether that decision had been right at the time it was taken. Facts in existence at that date might be examined even though they had not been discovered until later. In the present case, the reviewer had determined the authority's decision that it had discharged its duty in the light of the hospital's answer to its request for further information, but should have looked at the position as it was when the decision had been made. The review had therefore been defective. At the time of the local authority's decision, O's son was being taken for hospital testing on a weekly basis, and it was not therefore an inevitable conclusion that the accommodation offered was suitable. The matter was remitted for review, concentrating on the position as it was known to be at the date of the local authority's original decision.



Appeal allowed.



Martin Russell (instructed by Moss Beachley Muller & Coleman) for the appellant;

Nicola Allsop (instructed by the in-house solicitor) for the respondent.





PERSONAL INJURY

Insurance - accidents - tour operators

Kosmar Villa Holidays Plc v Trustees of Syndicate 1243: CA (Civ Div) (Lords Justice Rix, Jacob, Mr Justice Forbes):

29 February 2008

The appellant insurers (T) appealed against a decision ([2007] EWHC 458 (Comm), [2007] 2 All ER (Comm) 217) that T had elected to waive compliance with a condition precedent in a public liability insurance policy issued to the respondent tour operator (K).



The policy covered accidental injury to holidaymakers and contained a condition requiring K to notify T immediately of the occurrence of any injury. In breach of the condition, K had notified T of a potential personal injury claim over a year after the injury had occurred. T wrote to K requesting further information and informed the holidaymaker's solicitors that it was taking over conduct of the claim.



Several weeks later, T repudiated the claim for breach of the condition. K was found liable in damages to the holidaymaker and began proceedings seeking an indemnity in respect of that liability from T. The judge found that T had unequivocally communicated to K that it would deal with the claim and had thereby elected to waive compliance with the condition, but rejected K's arguments that T was prevented by estoppel by convention or representation from enforcing the condition.



K successfully appealed against the decision that it was liable to the holidaymaker, but sought an indemnity for its costs from T under the policy. T argued that the judge had been wrong to find that breach of a condition precedent was different to breach of a promissory warranty in an insurance contract, which automatically discharged the insurer from liability and did not give rise to a situation of election, and that he had been wrong to conclude that the communications by T after notification of the claim had been unequivocal; merely dealing with the claim for a short period was not inconsistent with repudiating liability. K argued that breach of a condition precedent merely gave rise to a defence and the insurer had to elect whether to rely on that defence. K argued that the communications were consistent only with T unequivocally making the informed choice to accept liability for the claim. K further argued that the communications amounted to a representation that T had accepted liability, which it was estopped from denying.



Held: (1) Breach of a procedural condition precedent remained the area of estoppel not election. Election required knowledge of the facts giving rise to the choice on the part of the party electing, and knowledge of the choice having been made on the part of the other party, Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (No1) [1971] AC 850 HL, and Motor Oil Hellas (Corinth) Refineries SA v Shipping Corp of India (The Kanchenjunga) [1990] 1 Lloyd's Rep 391 HL considered. An insurer who began to deal with a claim, even if he thereby represented that he viewed that claim at that time as being, if good, a matter for indemnity under the policy, was not thereby required for all time to maintain his dealing with or conduct of the claim. The exercise by an insurer of a right to conduct a claim made against his insured under a liability policy was not an election, and certainly not an unequivocal election, to accept liability under the policy, Soole v Royal Insurance Co [1971] 2 Lloyd's Rep 332 QBD considered. Dealing with a claim was not necessarily inconsistent with repudiating liability for indemnifying the insured in respect of it.



(2) In the communications, T had not expressly said that it was waiving the need for immediate notification, or that it was accepting liability to indemnify K. Although T had taken over conduct of the claim, it had also requested more information from K, and was entitled to a reasonable time to consider the response before reaching a decision about repudiating the claim, McCormick v National Motor and Accident Insurance Union Ltd [1934] 49 Ll L Rep 361 CA applied. The judge had been wrong to hold that T had sufficient knowledge to repudiate liability earlier. (3) As there had been no unequivocal acceptance of liability, there had been no waiver by estoppel.



Appeal allowed.



Richard Slade (instructed by Hextalls) for the appellants; Graham Eklund QC (instructed by Kennedys) for the respondent.





IMMIGRATION

Asylum seekers - persecution - country guidance cases

FB (Democratic Republic of Congo) v Secretary of State for the Home Department (2008): CA (Civ Div) (Lords Justice Pill, Keene, Maurice Kay): 6 March 2008

The appellant asylum seeker (B) appealed against a decision of the Asylum and Immigration Tribunal, upholding the refusal by the respondent secretary of state to grant him refugee status.



Although B was a national of the Democratic Republic of Congo (DRC), and his mother was Congolese, his father had been Rwandan. B left the DRC, where he had been a teacher, and entered the UK claiming asylum. The secretary of state refused his request, having found he had no well-founded fear of persecution if he returned. B appealed against that decision. The tribunal doubted the credibility of B's account that he had suffered detention and threats as a result of membership of an anti-government organisation and held that the story of his escape was at best vague and at worst implausible. It dismissed his appeal, having concluded that B's account was not true. B contended that the tribunal had erred in failing to have regard to his mixed nationality, and that pursuant to the appropriate country guidance case, he clearly fell into an identifiable category of risk on return as a result of his nationality or perceived nationality of a state hostile to the DRC, namely a Rwandan connection. B submitted that his entitlement to refugee status followed from that fact alone, and that the Court of Appeal should therefore grant him asylum. The secretary of state conceded that the matter ought to be remitted for reconsideration of the effect of B's nationality in the light of the country guidance, but argued that it was not enough for an applicant simply to assert a Rwandan connection entitle him to asylum.



Held: country guidance decisions were not to be read like statutes and did not cover every possibility. In the present case, while B's mixed ethnicity was relevant to the question of whether he would face persecution on his return, a broader approach to the country guidance was to be given than that contended for by B. The present case was not one in which it could be stated by rote that it was an inevitable consequence of B's Rwandan connection that the tribunal had to grant him asylum. The matter would, accordingly, be remitted to give the tribunal an opportunity to reassess the facts and consider the risk involved in the light of B's mixed nationality.



Appeal allowed.



Mark Henderson (instructed by the Refugee Legal Centre) for the appellant; P Patel (instructed by the Treasury Solicitor) for the respondent.