Seer Technologies Inc & Anor v Abbas

Permission to appeal against refusal of a broad amendment should be refused where the proposed pleading lacks a sufficient factual and evidential foundation, has no real prospect of success, or duplicates another claim. Loss caused by an alleged independent wrong cannot be attributed to an injunction for the purposes of an inquiry into damages. Properly formulated and specific amendments may remain for consideration by the judge managing the trial.

An injunction obtained against the applicant was later discharged as wrongly granted. The proceedings continued on counterclaims and an inquiry into loss said to result from undertakings given in lieu of the injunction.

The applicant sought permission to re-amend his counterclaims and the points of claim in the inquiry. Jacob J refused almost all the proposed amendments. The challenge before the Court of Appeal was confined to a claim alleging loss of intellectual-property value from the making and non-return of numerous copies of a model, with loss calculated by reference to licence royalties. The central issues were whether that loss could be attributed to the injunction and whether the proposed counterclaim had a sufficient factual and evidential foundation.

Lord Justice Mance refused permission to appeal and ordered that the application be refused with costs to be assessed.

1. Any loss caused by the making of copies of the model was attributable to an independent wrong. Any subsequent exploitation of the copies was likewise independent of the injunction. Such loss could not properly be claimed in the inquiry into damages arising from the injunction. Including it in the inquiry pleading would also duplicate the counterclaim.
2. The proposed counterclaim relied on numbering on CD-ROMs, affidavits and an accountants’ calculation applying the minimum licence royalty to 838 copies. It did not plead factual circumstances capable of giving rise to a royalty entitlement. The evidence and the history of abandoned discovery applications and earlier amendments provided no plausible basis for concluding that 838 copies, or any comparable number, had been made and commercially disseminated.
3. The proposed valuation, which applied the minimum licence fee to each alleged copy and produced a figure of approximately 67 million dollars before being capped at 5 million dollars, had no adequate pleaded or evidential foundation. Against the imminent trial and the history of exaggerated drafts, Jacob J was entitled, and right, to conclude that the broad allegations had no real prospect of success.
4. The refusal of the broad amendment did not prevent the applicant from asking the trial or management judge to consider specific, appropriately formulated amendments concerning particular copies or instances of dissemination. The present application was therefore refused, leaving any such specific applications to be considered by Jacob J as appropriate.

1. Court of Appeal (Civil Division) On 27 February 2001, Lord Justice Mance refused permission to appeal against the refusal of the proposed amendments and ordered costs to be assessed.
2. High Court of Justice, Chancery Division On 11 May 2000, Jacob J refused almost all of the proposed amendments to the counterclaims and the points of claim in the inquiry.