Facebook Ireland Ltd v Voxer IP LLC

Under the Shorter Trials Scheme, the court may fix a trial date before the case management conference where the scheme permits early listing. Fixing an early date is not necessarily an order for expedition. A date within the scheme’s contemplated timetable is ordinarily part of the normal operation of the scheme.

The court may list a suitable patent validity dispute for an early trial even though the defendant may later seek transfer out of the scheme. The possibility of transfer does not itself prevent early listing. The scheme is intended to provide shorter and earlier trials at proportionate cost, but it cannot be used to obtain early listing for a case which does not fit its requirements.

Facebook Ireland Limited brought a patent revocation claim against Voxer IP LLC concerning the UK designation of a European patent relating to telecommunications and multimedia management.

Facebook applied to fix a trial date before the case management conference, seeking a window beginning in March 2021. The application was motivated in part by related infringement proceedings in Germany, where infringement and validity are bifurcated. Voxer contended that the trial date should be fixed at the case management conference, proposed for October 2020, and argued that the application was one for expedition.

The central issue was whether the Shorter Trials Scheme permitted the court to fix the trial date at that stage and within the proposed window.

1. The application to fix the trial date was granted. The claim was suitable for a three- to four-day trial under the Shorter Trials Scheme.

2. Civil Procedure Rules 1998, Part 57A and Practice Direction PD57AB, section 2, contemplate that the court will normally fix the trial date at the case management conference, but expressly permit it to be fixed beforehand. Early fixing provides certainty and is not necessarily the same as fixing an unusually early date.

3. The proposed March or early April 2021 window was within the timetable contemplated by the scheme. The claim had been issued in May 2020, and the scheme’s guidance aimed to achieve trial approximately 10 months after issue. Accordingly, the application was the normal operation of the scheme rather than an application for expedition.

4. The absence of a letter before action did not justify refusing the application. It meant only that the parties had not established whether the defendant agreed that the claim should remain in the scheme and that proceedings may have been commenced about 14 days earlier than otherwise. The latter consequence was not significant.

5. The order was made without prejudice to the defendant’s ability to apply at the case management conference to transfer the claim out of the scheme. If the case later proved unsuitable or required more trial days than the scheme allowed, it could be removed from the list and re-fixed in the ordinary way. The scheme could not be used to obtain an early trial date for a case that did not fit it.

6. Counsel’s convenience and the Easter vacation were matters for ordinary listing arrangements and did not materially alter the decision to fix the trial window.

First-instance decision. No prior appellate decision is stated in the judgment.