Scomadi Ltd & Anor v R A Engineering Company & Ors

A court may vary an earlier order where it has jurisdiction to do so, exercising a broad discretion consistently with the overriding objective. A contempt application based on a publication must satisfy the strict liability requirements in section 2(2) of the Contempt of Court Act 1981, including a substantial risk of serious impediment or prejudice to the course of justice, proved to the criminal standard. Serious allegations of contempt, abuse of process or malicious falsehood must be properly particularised and justified. Publicity relief should be refused where the proposed corrective notice would itself be misleading, disproportionate or unsupported by the evidence.

The defendants applied to vary orders made after an earlier judgment by requiring the claimants to publish notices on their websites and send corrective letters to recipients of a press release. The application followed complaints that the first press release was misleading about infringement, contractual licensing and the models which could lawfully be sold. A second press release had subsequently been issued and included a link to the full judgment.

The court considered the jurisdiction to vary its earlier order, the allegations of contempt and abuse of process, the proposed malicious-falsehood claim, and whether the requested publicity measures were justified.

1. Jurisdiction to vary. The court had jurisdiction to vary its earlier order. In re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8 established a broad discretionary power to be exercised consistently with the overriding objective. Samsung v Apple [2012] EWCA Civ 1430 was distinguishable because it concerned clarification of a pre-existing order.
2. Contempt and abuse of process. Section 2(2) of the Contempt of Court Act 1981 required a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced. The requirements had to be proved to the criminal standard. The press releases did not create that risk, particularly because the trial was before a judge rather than a jury. The abuse-of-process allegation relied on the same arguments and failed for the same reasons.
3. Malicious falsehood. The tort required false words, maliciously published, calculated to cause and causing pecuniary loss. The evidence showed, at most, an ambiguity concerning infringement. The claimants’ explanation was accepted and there was no evidence of malice. Loss was also speculative and could have resulted from the possibility of an appeal or other causes.
4. Publicity relief. The second press release accurately clarified the position and should have ended the dispute. The defendants’ proposed notice was itself misleading because the earlier judgment had not found that all Royal Alloy GT and GP scooters could lawfully be traded or that none infringed any of the claimants’ intellectual property rights. The application was dismissed insofar as it sought the orders in paragraphs 1 and 2. The court criticised the defendants’ overbearing and disproportionate conduct.