Ablaise Ltd v Nettec Plc & Anor

Joint tortfeasance requires more than an agreement or corporate association. The claimant must plead facts from which a common design to commit the particular tort can clearly and properly be inferred. Joint liability requires conspiracy, procurement or inducement, or some participation in an act furthering the common design. Common directors, a parent-subsidiary relationship, statutory accounting arrangements, or an apparent presentation of the businesses as one entity do not, without more, establish that design. Where evidence discloses an arguable case but the pleading is inadequate, the court may strike out the relevant allegation conditionally, allowing the claimant an opportunity to provide proper particulars.

Ablaise Limited brought a patent infringement action against Nettec Plc and Nettec Solutions Limited. Nettec Plc applied to strike out the claim against it, asserting that it had been non-trading and had not participated in any infringement.

The pleaded case included direct infringement and, alternatively, joint tortfeasance based on a common design. The claimant relied on common directors, the corporate relationship, statutory accounts, and the companies’ presentation to third parties. The central issue was whether those matters adequately pleaded joint tortfeasance, or whether the allegation should be struck out.

1. The court accepted that the allegations of direct infringement were sufficiently particularised and could proceed.

2. Joint tortfeasance requires conspiracy, procurement or inducement, or participation in an act in furtherance of a common design. Mere agreement is insufficient, and there is no separate tort of knowing assistance. The relevant principles were drawn from Sepracor v Hoechst Marion Roussel [1990] F.S.R. 746, including the authorities referred to in that decision.

3. The pleading had to contain facts from which the existence of a common design to commit the pleaded infringement could clearly and properly be inferred. Common directors did not indicate such a design. Neither did the parent-subsidiary relationship, reliance on the subsidiary’s trading activities in statutory accounts, or an appearance to third parties that the businesses were conducted as one.

4. As pleaded, the allegation of joint tortfeasance was insufficient. However, the claimant had filed substantial evidence which, if properly pleaded, might give rise to an arguable case. The appropriate order was therefore to strike out paragraph 6 of the particulars of claim unless the claimant supplied further particulars of all matters relied upon in support of joint tortfeasance by the specified deadline.