H Young (Operations) Ltd v Medici Ltd

An adjournment should be granted where refusing it would cause an appeal to proceed by default and the respondent faces no substantial prejudice that cannot be addressed by costs. The court must weigh the parties’ interests, the adequacy of the explanation for delay, wasted judicial resources, and whether the appeal may require consideration beyond a newly identified point of law. An adjournment may be made conditional on indemnity costs, an interim payment and security, with striking out for non-compliance.

Medici appealed from an order of Jacob J dated 14 July 2003 refusing partially to revoke H Young (Operations) Ltd’s registered trademark in respect of certain Class 25 clothing. Shortly before the appeal hearing, Medici changed solicitors and sought an adjournment on the ground that it had insufficient time to prepare. The application followed uncertainty about whether the appeal would proceed and the withdrawal and reinstatement of instructions. H Young opposed the application, although it accepted that the principal prejudice would be further delay and uncertainty.

The central issue was whether the appeal should be adjourned despite Medici’s inadequate and incomplete explanations, the wasted court resources and the risk that the appeal would otherwise fail by default.

1. Application granted. The Court of Appeal adjourned the appeal. It ordered Medici to pay the costs occasioned by the adjournment on the indemnity basis and directed an interim payment, supported by security.
2. In exercising the discretion to adjourn, the court had to balance the prejudice to H Young against the consequences of refusing the application. If refused, the appeal appeared bound to fail by default because counsel had insufficient time to prepare. H Young accepted that it would suffer no substantial prejudice beyond prolonged uncertainty, and appropriate costs orders could address that prejudice.
3. The court took account of the fact that several explanations given for the changes of instruction and late application were incorrect or incomplete. It also considered that court time and resources had been wasted. Those matters did not, on balance, justify refusing the adjournment where the respondent could be protected by costs and the appeal could otherwise be lost without determination on its merits.
4. The court did not decide the underlying trademark issue. The appeal raised a potentially important question whether the national fair description test was consistent with European trademark law. However, the appeal might also require determination on its own facts, and H Young argued that the grounds of appeal would not justify the relief sought even if Medici’s legal point were correct. The court therefore could not assume that a short hearing limited to the proposed point would determine the appeal.
5. Medici was required to make the interim payment within 14 days and provide security within 48 hours. Failure to comply would result in the appeal being struck out. The appeal was directed to be relisted as soon as possible, if necessary without regard to counsel’s convenience.

• Court of Appeal (Civil Division): On 5 May 2004, granted Medici’s application to adjourn the appeal and imposed indemnity costs, interim payment and security conditions.
• High Court, Chancery Division: Jacob J, on 14 July 2003, refused to restrict the Class 25 trademark specification by reference to surf-type clothing or the intended age of purchasers.