Geofabrics Limited v Fibreweb Geosynthetics Limited

In a patent damages inquiry, the court must reconstruct the counterfactual on the evidence available and make the best broad assessment possible where precision is unattainable. The claimant bears the legal burden, but uncertainties created by the infringement may be resolved by assumptions generous to the claimant. Hypothetical conduct by the claimant is generally assessed on the balance of probabilities; hypothetical conduct by a third party may be assessed proportionately according to the chances. Recovery requires causation in the legal sense, not merely a but-for connection, and losses falling outside the proper scope of responsibility are too remote. Interest under Senior Courts Act 1981, section 35A, is compensatory and discretionary.

The judgment concerned the damages inquiry following a finding that the Defendant had infringed the Claimant’s European patent relating to an anti-pumping geosynthetic trackbed liner. Liability was established at first instance and upheld on appeal. The inquiry addressed the counterfactual trading structure, lost sales, pricing, production capacity, redundancies, future price depression, a Crossrail-related loss and interest.

The central questions were what would probably have happened without the infringement, which matters depended on the hypothetical conduct of third parties, and which losses were legally attributable to the infringement.

1. Counterfactual trading arrangements. The Claimant would probably have continued direct supply to Network Rail and distribution through Aqua for non-Network Rail sales. There was no real evidential basis for concluding that Aqua would have demanded complete exclusivity.
2. Lost sales and capacity. All Hydrotex 2 sales were treated as corresponding to Tracktex sales in the counterfactual. The Defendant’s evidence of additional sales generated by marketing was speculative and unsupported. The Claimant also had sufficient production capacity.
3. Pricing. Network Rail prices were based on the 2011/2012 Network Rail matrix, with annual growth of 3.25% applied every two years. Non-Network Rail prices were based on the 2011/2012 Aqua matrix, with annual growth of 2% applied annually. Calculations were to be based on rolls and without an additional rebate.
4. Redundancies and future loss. The development manager and sales support redundancies would have occurred in any event. A deduction of £189,008 was therefore made for production-staff savings that would not have arisen in the counterfactual. Future price depression was assessed over two years, using Mr Chapman’s approach to the estimated future sales price.
5. Causation and remoteness. The lower Crossrail price resulted from specific information supplied by Aqua that Hydrotex was available at £6.50 per square metre. That information was an intervening cause. The resulting loss was too remote and was not recoverable, applying the approach in Kuwait Airways Corpn v Iraqi Airways (Nos 4 and 5) [2002] UKHL 19.
6. Interest. Interest under section 35A of the Senior Courts Act 1981 was awarded at 2% above base rate. The parties were directed to calculate the damages in accordance with the findings.

• High Court (Patents Court): Liability for patent infringement was determined in Geofabrics Ltd v Fiberweb Geosynthetics Ltd [2020] EWHC 444 (Pat).
• Court of Appeal: The liability decision was upheld in Geofabrics Ltd v Fiberweb Geosynthetics Ltd [2021] EWCA Civ 854.
• High Court (Patents Court): The present judgment determined the damages inquiry and directed the parties to calculate the resulting sum.