Price & Ors v Flitcraft Ltd & Ors

The Court of Appeal allowed the appellants' appeal against summary judgment on patent and copyright ownership where the central issue was title to sue. The court applied established summary judgment principles (as summarised from Easyair v Opal Telecom and other authorities) and Part 24 rules and practice directions, and concluded that fresh evidence and a revised pleaded case raised a real prospect of successfully defending Supawall's claims. The court admitted further evidence (applying the modified Ladd v Marshall approach), permitted re-re-amendment of the defence to advance a chain of title based on a prior assignment (the Lightpeak assignment) and insolvency/administration events, and held that summary judgment on the patents and on copyright should not stand.

This was an appeal from Recorder Campbell QC's summary judgment decision in the Patents Court ([2019] EWHC 1965 (Pat)) where summary judgment had been given to the claimants (Supawall) on patent and copyright infringement, leaving passing off to trial.

The respondents sued for patent infringement, copyright infringement and passing off. The narrow issues on summary judgment were whether Supawall had title to sue in respect of two UK patents and certain photographic works. The defendants (Flitcraft) pleaded that title had passed by a chain of assignments via third parties and insolvency/administration events; alternatively they pleaded vesting in the trustee in bankruptcy. Supawall applied for summary judgment under CPR Part 24 without serving supporting witness evidence and relied in argument on the pleadings and certain contemporary documents. The Recorder concluded that there was no documentary support for Flitcraft's pleaded chain of assignments and that contemporaneous documents favoured Supawall, and he accordingly granted summary judgment.

The Court of Appeal allowed the appeal. The court considered:

• the correct legal test for summary judgment and the need to take into account evidence reasonably expected to be available at trial;
• the mandatory procedural safeguards in CPR Part 24 and the accompanying practice direction requiring clarity in the application notice and identification of evidence;
• the test and discretion for admitting fresh evidence on appeal (the Ladd v Marshall criteria modified by the CPR and subsequent authorities).

The court admitted fresh evidence from a trustee/administrator (Mr Craig) that identified a prior assignment (the Lightpeak assignment), described administrative sales and negotiations, and suggested a chain of title that did not depend on the 2011 assignment to Mr Bridge. The court accepted that this evidence could not readily have been obtained for the interim hearing, that reasonable diligence in the circumstances did not require earlier production, and that the evidence raised a triable issue as to ownership of the patents and the copyright. The court therefore permitted re-re-amendment of the defence and allowed the appeal, holding that Supawall could not have summary judgment on the patent and copyright claims while those triable issues remained.

Appeal allowed. The Court of Appeal held that fresh evidence and a revised pleaded case raised a real prospect that title to the patents and to the copyright works did not reside in the claimants; the summary judgment therefore ought not to have been granted. The further evidence was admitted under the modified Ladd v Marshall principles and permission was given to re-re-amend the defence to plead the new chain of title arising from the Lightpeak assignment and insolvency/administration events.

Appeal from Recorder Campbell QC in the Patents Court, High Court of Justice (Business and Property Courts: Intellectual Property list (ChD) (Patents Court)) reported at [2019] EWHC 1965 (Pat); appeal heard in the Court of Appeal, [2020] EWCA Civ 850.