Ifejika v Ifejika

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success and no other compelling ground justifies permission. Challenges to factual estimates or evaluative assessments in an account of profits do not ordinarily justify appellate intervention without an error of principle. This includes estimates of sales, the value of an infringed design feature and its functional importance. A statutory cap under the Copyright, Designs and Patents Act is immaterial where it has no impact on the award.

Victor Ifejika’s infringement action against Charles Ifejika and his company concerned a contact lens cleaning device. Registered design protection was cancelled, while infringement of part of the unregistered design right was established. By judgment dated 31 July 2014, HHJ Hacon assessed an account of profits at £15,800. Charles sought an extension of time and permission to appeal on grounds concerning procedural disadvantage, the inclusion of non-infringing products and the Licence of Right provisions. Victor challenged the statutory analysis and the valuation of the infringed design feature, and sought to adduce expert evidence. The central issues were whether either proposed appeal had a realistic prospect of success or another compelling basis for permission.

Applications refused. Both renewed applications for permission to appeal were dismissed, and the application to adduce further evidence was refused.

1. Charles’s notice of appeal was significantly out of time. An extension would serve no useful purpose because the proposed grounds had no realistic prospect of success and no other compelling ground justified permission.
2. The complaint that Charles had been disadvantaged by the absence of a properly prepared common trial bundle was not a realistic ground. HHJ Hacon had derived the sales figures principally from VAT returns, rather than the May 2004 purchase order, and was entitled to conclude that 510,000 products had been sold, particularly since Charles had conceded that his lower figure was insufficient.
3. The complaint about the inclusion of loss-making lens-care products raised a factual issue. The inquiry necessarily involved broad estimates. Even an alleged difference of about two per cent would not justify permission where no error of principle was identified. The appellate court was reluctant to interfere with factual findings.
4. The Licence of Right cap could operate only if the defendant undertook to accept a licence on terms settled by the Comptroller. HHJ Hacon had concluded that the cap would not affect the award. Consequently, arguments about the statutory starting date for infringement could not alter the outcome in either application.
5. Victor’s challenge to the percentage attributed to the undercut feature concerned an evaluative assessment for the first-instance judge. The assessment properly involved both the feature’s proportion in the design as a whole and its functional importance. No misconception was shown, and the conclusion was unimpeachable on the evidence. Victor did not pursue the proposed new expert evidence.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 873: renewed applications for permission to appeal refused; further evidence application refused.
• Intellectual Property Enterprise Court (Chancery Division) — judgment dated 31 July 2014 by HHJ Hacon: account of profits assessed at £15,800 following established infringement of unregistered design right.
• Chancery Division — judgment dated 23 November 2011 by HHJ Birss QC: registered design cancelled and infringement of part of the unregistered design right found.