Xylum Corporation (USA) v Gorog & Ors

Permission to appeal and an extension of time were refused. A delay of about three years without satisfactory explanation was sufficient to refuse permission concerning the 1997 orders. An appellate court will not interfere with credibility-based findings of fact where the trial judge saw the witnesses and no proper appellate basis is shown. A consent order cannot be appealed without first being set aside. Lawful enforcement of rights established by the judgment did not establish duress. The Human Rights Act 1998 did not apply to this private contractual dispute. The costs order was also not arguably wrong on the applicable appellate standard.

Dr Gorog sought permission to appeal, with an extension of time, against orders made in related patent and contractual litigation. Laddie J had found that the Thrombotic Status Analyser was invented by Dr Gorog and his wife, fell within the improvement clause of the licence agreement, and was subject to Xylum’s contractual rights. A subsequent Tomlin consent order settled the proceedings. Pumfrey J later ordered execution of assignments and restrained challenges to patent validity.

The application concerned whether the delay should be excused and whether the proposed challenges had any realistic prospect of success, including challenges based on factual findings, alleged duress, the Human Rights Act 1998, and costs.

1. Outcome. The applications for permission to appeal and for an extension of time were refused.
2. Delay. The application was made about three years out of time in relation to the 1997 orders. There was no satisfactory explanation for that delay. That ground alone justified refusing permission in relation to those orders.
3. Findings of fact. The proposed challenge to Laddie J’s conclusion that Dr Gorog and his wife invented the device was fundamentally a challenge to credibility-based findings. The judge had seen the witnesses give evidence and had concluded that their account was untruthful. The Court of Appeal would not interfere with that finding. Once the judge found that the device was their invention and fell within the contractual improvement clause, the consequential orders followed.
4. Human rights argument. The dispute concerned contractual rights between private parties. It was not a human-rights dispute to which the Human Rights Act 1998 applied. The events also preceded the Act’s coming into force.
5. Consent order and duress. The Tomlin order was made by consent. It could not be appealed unless first set aside. The alleged pressure arose from steps taken to enforce rights which, on the judge’s findings, belonged to Xylum. The alleged duress therefore provided no basis for a successful appeal.
6. Costs and prospects. The costs order was discretionary. Appellate intervention would require a failure to consider relevant matters, consideration of irrelevant matters, or a plainly wrong conclusion. None was established. The proposed appeal would fail and permission was inappropriate.

1. High Court (Chancery Division, Patents Court): Laddie J made orders on 30 July 1997 and 16 September 1997 concerning the contractual rights, patents and consent settlement.
2. High Court (Chancery Division, Patents Court): Pumfrey J gave judgment on 6 July 2000 and made an order on 20 July 2000 requiring execution of assignments, restraining challenges to patent validity, and ordering costs.
3. Court of Appeal (Civil Division): Lord Justice Aldous refused permission to appeal and refused an extension of time.