Scomadi Ltd & Anor v RA Engineering Co. Ltd & Ors

Permission to appeal requires a real prospect of success or another compelling reason. A disagreement with factual findings, without an identified error of principle, will not ordinarily satisfy that test. Publicity orders are exceptional and depend on the extent and nature of the publicity requiring correction. Disclosure of recipients of threatening or damaging correspondence may be ordered where the applicant has a legitimate purpose, including correcting the position or assessing damages. Costs are determined by identifying, in substance and reality, who won the litigation. Where costs are not yet assessed, the court may order an interim payment on account, subject to appropriate protection against overpayment.

The judgment dealt with consequential issues following the main judgment in [2017] EWHC 2658 (IPEC). The claimants sought permission to appeal findings concerning ownership, construction of a supplementary agreement, repudiatory breach and termination. The defendants sought a publicity order and disclosure of the recipients of a letter sent by the claimants. The court also addressed reservation of costs, the identity of the successful party and the appropriate payment on account.

1. Permission to appeal. Applying CPR Part 52.6, the court found no real prospect of success. The proposed appeal did not challenge the factual finding that Hanwei had contributed to the designs, the reliance on Peekay, or identify an error of principle. A proposed argument concerning separate ownership had not been pleaded or advanced at trial. The application for permission was refused, leaving the claimants free to apply to the Court of Appeal.
2. Publicity order. Following the approach in Samsung v Apple, such an order was relatively rare. The limited publicity in this case did not justify requiring a website notice. The defendants could explain the result in their own words.
3. Disclosure. The court applied CHC Software v Hopkins and Wood. The defendants had a legitimate purpose in obtaining the identities and contact details of recipients of the claimants’ letter, namely correcting the position and potentially establishing matters relevant to damages. An order for disclosure was made.
4. Costs. The court followed the substance-and-reality approach in Roache v News Group Newspapers. The defendants had obtained the principal commercial result, namely the right to manufacture and sell Royal Alloy scooters in Europe. Costs were therefore ordered in their favour. The court declined to reserve costs generally. Global Flood required costs assessment to await resolution of all issues, but did not prevent an order for costs accompanied by an interim payment.
5. Payment on account. The court distinguished payment on account from assessment and adopted a case-by-case approach, informed by Westwood v Knight. A payment of £42,000 was ordered.

This was a subsequent-issues judgment following the main judgment in [2017] EWHC 2658 (IPEC). Permission to appeal was refused, with liberty to apply to the Court of Appeal.